Eugene Volokh's Blog, page 2668

Call for Papers on the Law and Cloud Computing

(Eugene Volokh)

From two of the journals here at UCLA law school:

CALL FOR PAPERS: 2012 UCLA ENTERTAINMENT LAW REVIEW and the JOURNAL OF LAW AND TECHNOLOGY SYMPOSIUM

The UCLA School of Law's Entertainment Law Review (ELR) and Journal of Law and Technology (JOLT) are co-hosting their first annual Symposium on March 18, 2012 at the UCLA School of Law. The Journals are seeking submissions for the Symposium, which will focus on legal issues related to cloud computing. Papers may address any important aspect of the law and cloud computing, including privacy concerns, antitrust violations, and intellectual property and copyright claims.

ELR and JOLT are particularly interested in the current issues and concerns regarding cloud computing. Cloud computing is the use of software as a service, rather than as a product, whereby shared resources and information are provided to computers by third parties over a network. The concerns raised in regard to privacy issues center on the increased ability of companies hosting the cloud service to keep track of the information and data stored between the user and the host. Service providers will be capable of accessing and monitoring consumers' habits with greater ease than ever before. Another concern is antitrust as cloud computing services will provide large companies with more power to resist competition. As of right now, it is unknown whether or not a consumer will be forced to exclusively consume particular products and services once that consumer selects a cloud service provider. Many companies may use cloud computing as a way of linking the cloud service to their individual products, thus reducing the ability of consumers to use competing products. Finally, there is the possibility that intellectual property laws may interfere with the success of cloud computing, and it remains to be seen how cloud computing will comply with copyright laws.

DEADLINES TO SUBMIT:

Papers (drafts): February 27, 2012

Please submit an Abstract by December 21, 2011 to elrsubmissions@lawnet.ucla.edu with "Symposium Submission" in the subject line. Selected presenters will be notified by January 3, 2012, and will be asked to provide a polished draft of their Paper by February 27. Papers will be jointly published in the Summer 2012 issues of the Entertainment Law Review and the Journal of Law & Technology.

NPR's "All Things Considered" on the Scope of the Computer Fraud and Abuse Act

(Orin Kerr)

I was interviewed for a segment of NPR's "All Things Considered" today on the Lori Drew case and the scope of the Computer Fraud and Abuse Act. You can listen to the segment here.

EU Bans Claim That Water Can Prevent Dehydration

(Orin Kerr)

No, it's not The Onion; it's a real story.

Why Yankee Doodle called it "macaroni"

(David Kopel)

The question has bothered me for decades. We sang "Yankee Doodle" plenty of times at school, but nobody seemed to wonder why he would say that "a feather in his cap" was "macaroni."

At last, I found the answer, in Thomas Wright's book "Caricature History of the Georges" (1860), which examines political and social satire drawings during the reigns of England's King Georges I, II, and III. A very interesting book, if you're interested in English history. Despite what the title might suggest, most of the book is text, not pictures. The author notes that for a while in the late 18th century, magazines often did 3-word book reviews. So let's call this book "clever, erudite, tory."

On pages 258–61, we learn that during the reign of George II, "men of fashion" were called "beaux." In 1749, "fribble" became the new term, and this persisted into the reign of George III. In 1772, things changed. Rich young men who had made the tour of the continent came back with new fashions of all kinds; thanks to the wealth pouring in from India, the time was one of extravagant frivolity. The young men formed a club which soon took the name of the unusual Italian dish which it served. For the gentlemen of the Macaroni Club, "it was their pride to carry to the utmost excess every description of dissipation, effeminacy of manners, and modish novelty of dress." The Macaronis of 1772 "were distinguished especially by an immense knot of artificial hair behind, by a very small cocked-hat, by an enormous walking stick, with long tassels, and by jacket, waistcoat, and breeches, of every close cut."

Then in 1773 the Macaroni fashion changed to "the elevation of the hair, and the adoption of immense nosegays in the bosom."

So the mystery of Yankee Doodle is solved. He is an American rube and rustic. He naively thinks that a mere feather in his cap makes him an ultra-fashionable "macaroni."

It turns out that I could have learned the truth by just looking up "Yankee Doodle" and "Macaroni" in Wikipedia. But at least I finally understand.

McKenna on "The Cruel Lesson of Penn State"

(Orin Kerr)

Over at Slate, law professor Mark McKenna has a courageous essay on the abuse allegations at Penn State — and how they have encouraged him to speak out for the first time about his own victimization. An excerpt:

A student raised his hand in my torts class last week and asked whether Joe Paterno might be exposed to liability for failing to tell the police about Jerry Sandusky's alleged sexual assault of a young boy in the Penn State locker room. It was a perfectly legitimate question—we had been studying tort law's general reluctance to impose liability for omitting to act. And it didn't come as a surprise—I have always encouraged students to bring current events to class, and the Penn State situation was nearly impossible to avoid last week. Still, I had prayed no one would ask about it because I was not sure I could make it through any sort of answer. As I'd feared, the question stopped me cold.

I have spent the better part of my life working to cover wounds from my own childhood abuse, about which I have never spoken publicly. In fact, I've hardly talked about it at all; I can count on two hands the number of people who know anything about it. Some of my siblings will learn of it from this article.

. . . [A]s the story has remained in the headlines and the uncomfortable conversations have continued, I haven't been able to shake an overwhelming feeling that I failed Sandusky's victims and, by extension, far too many other boys. Abuse thrives on silence. In some cases, as the Penn State situation makes clear, the silence of third parties gives perpetrators license. But victims' silence also plays a huge role. This is true in the immediate aftermath of the abuse, where victims' inability to speak out puts them (and others) at further risk. It's also true much more generally. Several of my friends, for example, were shocked when Rick Reilly reported that, according to a 1998 study on child sexual abuse by Boston University Medical School, one in six boys in America will be abused by age 16. For girls, it's one in four by the age of 14. They were shocked, no doubt, because concrete examples of abuse are not as available to them as the statistics suggest. Most people don't think they know any abuse victims.

But they do know victims. They just don't realize it, because so many of us have been unable to reveal ourselves. This breeds a false sense of security, with too many adults believing abuse is someone else's problem.

. . . So here it is: I am a victim of sexual abuse.

I say this now, at age 36, in the hopes it can make a small difference to those currently suffering in silence. You know them, I promise. They are your neighbors, your friends, your co-workers, and, painfully, your children. Be a safe place for these people. If you are one of them, I am sorry. Know you are not alone.

Thanks, Mark, for writing this.

More on the Gay Athletic Group's First Amendment Right to Limit the Number of Straight Players on a Team

(Eugene Volokh)

As I noted in June, a district court held that, under Boy Scouts v. Dale, a gay athletic group had a First Amendment right to limit the number of straight players on a team, since that was necessary for it to convey its expressive message. The court has now issued a new opinion (Apilado v. North American Gay Amateur Athletic Alliance (W.D. Wash. Nov. 10, 2011)) reasserting its conclusion, but developing the analysis further:

In a May 31, 2011 order, the Court denied Plaintiffs' motion for partial summary judgment as to whether Rule 7.05, which stated that teams participating in the Gay Softball World Series ("GSWS") were limited to two players who were not predominantly interested in the same sex, violated the Washington Law Against Discrimination ("WLAD"). In response to the motion, NAGAAA argued that Rule 7.05 was protected by the First Amendment.

To determine whether or not the First Amendment did indeed protect Rule 7.05, the Court applied the three-pronged test found in Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000). Under that test, NAGAAA's decision to exclude someone from membership is protected by the Constitution if NAGAAA can show three things: (1) NAGAAA is an expressive association, (2) forced inclusion of unwanted members would affect NAGAAA's ability to express its viewpoints, and (3) NAGAAA's interest in expressive association outweighs the state interest in eradicating discrimination. See id. at 648–59. The Court held that NAGAAA had satisfied the first two prongs but determined that the parties had not provided enough information to resolve the third prong.

Later, in response to a motion for reconsideration from the Plaintiffs, the Court requested additional briefing from the parties on that third prong, so that NAGAAA's First Amendment rights under the Dale test could be conclusively decided. The Court now considers that final question: does NAGAAA's interest in expressive association outweigh the state interest in eradicating discrimination? ...

In the previous Order, wherein the Court determined that NAGAAA was an expressive association, the Court did not find an explicit formulation of the message NAGAAA intended to express. Instead, the Court found that NAGAAA communicated a mission and a purpose through its literature that fell easily within the standards that the Supreme Court had set for an expressive association. Now, however, NAGAA has made its intended message explicit: ...

NAGAAA has chosen to send a message through the annual Gay Softball World Series that athletes can play competitive team sports 'as openly gay, lesbian, and bisexual individuals,' and to 'demonstrate that there are such men and women.' [Emphasis in original.]

The importance of this statement of NAGAAA's expressive purpose is that it provides a basis for excluding not only straight players, but also "closeted" players who choose not to publicly identify as LGBT.

Plaintiffs argue that the insistence on openly LGBT members is a retroactive pretext for discrimination against players who chose not to identify as such. The Court disagrees. While the precise nature of sexual identity is a subject on which this Court declines to opine, it is safe to say that sexual orientation, unlike race or sex, is generally identifiable by private conduct or public expression. To determine a prospective member's sexual orientation, NAGAAA could look at their private conduct or their public expression. Given that it was NAGAAA's alleged examination of Plaintiffs' private conduct that led to claims for invasion of privacy in this case, it is reasonable that an organization seeking to limit participation to gay athletes would require members to express whether or not they are gay athletes. Therefore, the Court accepts NAGAAA's statement of its expressive purpose as presented.

To weigh NAGAAA's interest in expressive association, the Court must examine evidence of the impact that admitting players who do not meet NAGAAA's eligibility requirements would have on that expression. See Board of Dirs. of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537, 548 (1987) ("In this case, however, the evidence fails to demonstrate that admitting women to Rotary Clubs will affect in any significant way the existing members' ability to carry out their various purposes.") As discussed above, the Court has already held that NAGAAA's protected First Amendment rights would be burdened by forcing them to include an unlimited number of athletes who do not meet their membership rules.

The Commissioner of NAGAAA submitted a declaration explaining that the desire for exclusivity was born of the fact that many members of the LGBT community come from backgrounds where team sports have been environments of ridicule and humiliation. NAGAAA's efforts to promote an athletic, competitive, sportsmanlike gay identity, with a unique set of values, in response to a particular need, are protected by the First Amendment. Forced inclusion of straight athletes would distract from and diminish those efforts.

There is additional evidence to support this conclusion. Chris Balton, the Assistant Commissioner of the Memphis league, testified that inclusion of straight players in that league resulted in the loss of a sense of community. Geoff da Silva, the Treasurer of NAGAAA in 2008 and the former commissioner of the NAGAAA member league for Toronto, testified that Rule 7.05 was implemented in response to problems that NAGAAA had in its formative years. At that time, participation was open to all and predominately straight teams were playing in and winning the GSWS. Da Silva testified that "this was because some local bars at the time were building teams purely to win, for self-promotion, and they did not care about the spirit of NAGAAA or the Gay Softball World Series." Gary Carter, the Business Development Director for NAGAAA, testified that NAGAAA "allows members of the LGBT community to see that they can be out and open, and play sports." Unlike Duarte, therefore, the evidence in this case demonstrates that admitting straight and closeted players would affect in a significant way the existing members' ability to carry out their various purposes....

The next step for the Court is to examine the state interest in enforcing its public-accommodation laws. One disagreement between the parties is over the appropriate scope of relevant state interest: NAGAAA argues that the state has no particular interest in preventing discrimination against straight and closeted softball players, while Plaintiffs argue that the state is interested in eliminating all forms of discrimination, regardless of the particulars....

Roberts, Duarte, and Dale all support the thrust of NAGAAA's argument: the state interests should be narrowly defined to a particular form of discrimination. Indeed, if state public-accommodation statutes truly prohibited discrimination against all groups and in any form, then freedom of association would be toothless. Plaintiffs have not shown, and the Court cannot find, any reason to believe that the state interest in eliminating NAGAAA's exclusionary policies outweighs NAGAAA's associational rights. Accordingly, the First Amendment protects NAGAAA's membership policy from Washington's public-accommodation laws....

The Safety Sticker of the Beast

(Eugene Volokh)

Here's what is alleged in the Complaint in Hyatt v. Berry Plastics Corp. (N.D. Ga. filed Nov. 8, 2011) — recall that these are just the plaintiff's allegations:

1. Hyatt's employer kept a safety calendar that marked the number of consecutive days that the workplace was accident-free. Employees were required "to write the number off of the safety calendar onto a sticker and are to wear the sticker throughout the work shift" (I'm quoting the Complaint here).

2. "As the number of safely worked days crept into the range of the 600's, Plaintiff began discussing with his co-workers and supervisors that he could not wear the number 666 as this number was the sign of the beast and his religious beliefs forbid him from wearing this number. Plaintiff sincerely believed that wearing a sticker with the number '666' on it would be abandoning his beliefs and his God, and would subject Plaintiff to damnation and would force Plaintiff to abandon his religious beliefs."

3. Plaintiff asked a manager for a religious accommodation on day 666, but the manager allegedly responded that "Mr. Hyatt's beliefs were ridiculous, and that Mr. Hyatt could go to work with a '666' on his safety sticker or face a three (3) day suspension." Plaintiff decided to take the three-day suspension, but was then fired for refusing to work on day 666.

Plaintiff is now suing, claiming the employer violated Title VII of the Civil Rights Act by refusing to reasonably accommodate his beliefs, and retaliated against plaintiff for asserting his rights.

If plaintiff's account of the facts is accurate and complete, then he ought to win under the law. I discuss the relevant legal regime here, but the basic principle is that an employer must give religious employees special exemptions from generally applicable job requirements if (1) the requirements interfere with an employee's sincerely felt religious obligations and (2) such an exemption doesn't impose "undue hardship on the conduct of the employer's business." 42 U.S.C. § 2000e(j); TWA v. Hardison, 432 U.S. 63 (1977). The "undue hardship" standard isn't hard for the employer to meet — any "more than ... de minimis cost" to the employer would qualify as an undue hardship. But here the only cost was letting plaintiff not wear the sticker for one day, something that was highly unlikely to impose any more than de minimis cost on the employer. (To be sure, dealing with individual exemption requests always involves some cost, just in processing the request and deciding whether to grant it, but such a cost obviously isn't enough to warrant denying requests, or else the statutory duty of religious accommodation would never be triggered.)

Indeed, courts have commonly found that employers must give religious exemptions from dress code or grooming requirements, unless this would interfere with safety or with the public mission of the employer (such as a police department that requires uniforms). Thus, for instance, a man who feels a religious obligation to wear a beard is generally entitled to an exemption from an employer's no-beard policy, absent some evidence that such an exemption would pose an undue hardship on the employer. See, e.g., Carter v. Bruce Oakley, Inc., 849 F. Supp. 673 (E.D. Ark. 1993). A woman who feels a religious obligation not to wear pants is likewise generally entitled to such an exemption, again unless there's some good reason (such as safety) for barring her from wearing a skirt or a dress. The same principle should apply to this case.

One can debate whether it's good policy to require private employers to give employees special religious exemptions (or conscientious examples motivated by deeply held secular philosophical beliefs, which the EEOC and many courts have held are likewise covered by the religious accommodation requirement). But that's the law, and under the law the Beast-phobic are entitled to an exemption, regardless of how "ridiculous" their beliefs might seem to others.

UPDATE: Let's not forget the zip code of the beast and many other similar items.

Finding Fault with the Stop Online Piracy Act

(Stewart Baker)

Once again, Congress is being asked to make bad rules that will hurt network security, but this time the blame doesn't fall on the privacy lobby.  This time the booby prize goes to the intellectual property lobby.

Below is an op-ed I wrote for Politico this week on the security consequences of the copyright enforcement bills now on the Hill — PROTECT IP and the Stop Online Piracy Act.  As it happens, the House Judiciary Committee held a hearing on the proposal on Wednesday, when the op-ed appeared, and some of the questioning turned on my op-ed.  Indeed, I gather that it contributed to an unexpectedly ragged performance from Hollywood's normally smooth witnesses.

Unfortunately, the Politico article was posted behind a paywall.  That's pretty ironic for an op-ed questioning the value of over-enforcing the copyright laws. So I'm posting it here, too:

Everyone knows that internet security is bad and getting worse.  Recognizing the problem, Congress is hard at work on cybersecurity, with a number of bills on the table.  Ironically, at the very same time, Congress is getting ready to pass a copyright enforcement bill that could kill our best hope for actually securing the internet.

How did that happen?  Let's start with the internet, where fake websites cost users millions of dollars in fraud losses every year.  Unless we find a better system for locking down website identities, this and other forms of online crime will continue to skyrocket.

It turns out that internet engineers have already designed a system to solve this problem — a set of technical rules that go by the unlovely name of DNSSEC. Under these rules, an Internet website will be given identification credentials by the same company that registers its Internet name.  Thus, when Citibank claims the domain name citibank.com, the registry who issues the name will at the same time lock that name to a particular Internet address. From then on, anyone who types "citibank.com" into his browser will be sent to one and only one Internet address.  Under the new system, the browser simply will not take the user to a site that isn't verified by Citibank's unique credentials.

That's protection that the people who bank online need today. 

Why don't they have it?  Two reasons.  The first is friction.  Moving to the new rules won't be free.  It will require a lot of work by browser companies, internet service providers, domain registries, and others – many of whom may never get any direct benefit from the change.  Naturally, these companies are a little slow to spend money that just makes the internet overall safer; that's the tragedy of the commons.  But as the need for security becomes obvious to all, we're slowly overcoming that friction, thanks in part to the leadership of my old agency, the Department of Homeland Security, in getting government to adopt the new procedures.

The second problem is new. It is Hollywood's desperate desire to keep foreign websites from delivering pirated movies and music to American computers.  To do that, the movie industry wants a law that will require internet service providers block their customers from going to those sites.  Instead, the users are supposed to be sent to a site that warns them against copyright infringement.

 Hollywood has sold that idea to Congress, and bills are now moving through both houses to impose this "block and redirect" obligation on internet service providers.  And they're moving fast. The Senate bill is out of committee, while the House judiciary committee is holding hearings on a similar bill this week.

 This is far faster than Congress's cybersecurity effort, and it runs directly counter to that effort. Because "block and redirect" is exactly what crooks are doing today to bank customers.  If the bills become law, the security system won't be able to tell the difference between sites that have been blocked by law and those that have been sabotaged by hackers. Indeed, it isn't hard to imagine crooks redirecting users to sites that say, "You were redirected here because the site you asked for has violated copyright," while at the same time planting malware on the user's computer. 

 What's more, the bill will likely break the fragile consensus that my former agency, the Department of Homeland Security, has spent years helping to build around the switch to DNSSEC.  If the bill passes, practically everyone who needs to make changes to implement DNSSEC will instead be on the phone to their lawyers, asking whether they will be sued for adopting a security technology that makes the mandated "block and redirect" system even more difficult. 

If "block and redirect" could stop Hollywood's bleeding, perhaps a case could be made for undermining everyone's security in order to protect the studios' intellectual property. But it won't stop the bleeding.  Even today, if someone is blocked and redirected away from his favorite pirate website, he can find many simple ways to defeat the block. He can paste his favorite pirate website's number (rather than its name) into the address box on his browser.  Or he can simply tell his computer to look up the site's address on a Canadian server instead of an American one.

Passing this bill will make Hollywood feel better, and richer. 

For about a minute. 

It will leave the rest of us hurting and poorer for years.

Harvard Law Review Supreme Court Issue

(Orin Kerr)

The Harvard Law Review has posted its annual Supreme Court issue, featuring a very interesting Foreword by Dan Kahan. Suzanna Sherry responds to Kahan here, and Mark Tushnet responds as well here.

Finally, A Biography of Judge Henry Friendly

(Orin Kerr)

Back in 2008, I wrote the following post:

Judicial Biography Needed: Every modern Supreme Court Justice becomes the subject of one or more judicial biographies. It's a different picture in the court of appeals. Circuit Court Judges occasionally become the subject of a biography, but coverage is spotty. Of course, Gerald Gunther brought us the fantastic Learned Hand biography. And other judges have also been the subjects of biographies of varying qualities, including Frank Johnson, Skelly Wright, Bill Hastie, John Biggs, and Harold Medina, just to name a few.

But who will write a biography of Judge Henry J. Friendly? As far as I know, no one has written a biography of Friendly. But Judge Friendly probably had the most lasting influence of any Circuit Judge of the 1960s and 1970s. Also, he seems to have been a fascinating and brilliant figure. Plus, his law clerks have gone on to great prominence, making the story of the judge all the more interesting. Altogether, Judge Friendly seems like a natural subject for a biography. But is anyone planning to write one? Someone should. (Full confession: I have sometimes thought it would be cool to try myself, but I have absolutely no training in such things so I doubt I would ever try.)

I'm pleased to report that is about to change with this book:

Ron Collins has the scoop over at SCOTUSblog:

Late next March a biography of Judge Friendly is scheduled to be published. The author is David M. Dorsen, a seasoned trial lawyer and Harvard Law graduate who served as an editor on the Harvard Law Review, followed by stints as (among other things) an Assistant U.S. Attorney for the Southern District of New York (1964–1969) and Assistant Chief Counsel to the Senate Select Committee on Presidential Campaign Activities (1973–1974).

The forthcoming five-hundred-plus-page biography is titled Henry Friendly: Greatest Judge of His Era. Belknap Press of Harvard University Press is the publisher and Judge Richard Posner has apparently written a foreword to the book, which speaks well for the undertaking. Pace Law Review recently published a sampling of Dorsen's treatment of his subject.

You can pre-order the book at Amazon here.