Eugene Volokh's Blog, page 2688
October 20, 2011
My View of the First Question Presented in United States v. Jones, the Fourth Amendment GPS Case
In a few weeks, the Supreme Court will be hearing oral argument in United States v. Jones, the case on whether installation and/or use of a GPS device on a suspect's car to record the public places the car travels is a Fourth Amendment search or seizure. I've thought a lot about the Jones case over the last few months, and having read the briefs (and most of the amicus briefs) in the case, I wanted to offer my thoughts.
At the outset, let me give my bottom line: I'm not sure which side should win. On one hand, I don't think use of the device should be held to be a search or seizure. On the other hand, I am genuinely divided on whether I think the installation should be deemed a search or seizure. Given these two positions, I don't have an answer to whether the combined installation and use should be permitted without Fourth Amendment oversight (although I have a lot of views on better or worse ways to get to either result). Regardless of how the Court rules, however, I think a new privacy statute is needed to address both government and private sector use of GPS surveillance.
I'm going to make that case over three posts. In this post, I'm going to address the first Question Presented (QP) in Jones: Whether the use of the device to obtain location information should be deemed a search or seizure. (My answer: No.) In the next post, I'm going to address the second QP, whether installation of the device is a search or seizure. (My answer: I'm divided.) And in the third post, I'm going to address the need for and likelihood of statutory regulation of GPS, especially if the Court rules for the government in the Jones litigation. So that's the game plan. On to the first post, on whether use of the device is a search or seizure.
I. The Inside/Outside Distinction
Let's start with first principles The text of the Fourth Amendment states that the Amendment protects security in "persons, houses, papers, and effects," and the Fourth Amendment's prohibition on unreasonable "searches" does so by protecting invasions into those private spaces. Over the years, the Supreme Court has developed a relatively simple line for distinguishing the invasions into persons, houses, papers, and effects that the Fourth Amendment regulates as "searches" from the investigative steps that the Fourth Amendment does not regulate. That distinction is the line between what I will call inside surveillance and outside surveillance: Surveillance of outside spaces is always permitted, while surveillance of inside spaces is a regulated "search."
Consider a few examples. Government entry into a home is a search, as is entry into a car, or a sealed package, or a letter, or a person's pockets. These are all intrusions into persons, houses, papers, and effects. They are all searches. On the other hand, surveillance in public places that does not enter into private spaces, such as watching someone on the street, looking at their faces, examining the outside of their packages, overhearing their voice, or following someone in a store open to the public, is not a search. These are not intrusions into persons, houses papers, or effects, and they are not searches under the Fourth Amendment.
Interestingly, you get these same results regardless of version of the Supreme Court's doctrine you apply. You get the same results whether you get these results under the "protected areas" test that preceded the 1967 Katz case, or the Katz "reasonable expectation of privacy" test that the Court has adopted since then. The results are the same: A search occurs when the government intrudes upon a private person, house, paper, or effect, but does not occur when the government merely observes something in a public space or in a space where the government is otherwise entitled to be. I will refer to this using the short-hand of inside versus outside surveillance, as I did in this article.
The fundamental distinction between inside and outside surveillance leads to some close calls, to be sure. For example, imagine the police approach a home, walk directly up to an open window, press their faces up to the window, and peer in to see what is in the room inside. Technically, that is surveillance from an open space, but functionally it is surveillance of the inside of the home. Is that protected inside surveillance, or unprotected outside surveillance? The Supreme Court has created the distinction between "curtilage" and "open fields" to answer that: The outside area immediately around the home that can be used to peer inside the home is treated as inside surveillance (curtilage) rather than outside surveillance (open fields). See United States v. Dunn. Similarly, imagine the police use a thermal imaging device to determine the exterior temperature of a wall on the home. Is that outside surveillance, as it is only of the outside of the wall exposed to the public, or is that inside surveillance, as it reveals information about the inside of home? It's a tricky call, as the 5–4 decision in Kyllo v. United States reveals. But the basic point remains: The distinction between inside and outside surveillance is the basic building block of the Supreme Court's "search" cases.
II. The Knotts and Karo Precedents from the Radio Beeper Era
How does this distinction apply to the use of government surveillance devices installed to determine the location of property used or controlled by a criminal suspect? The Supreme Court first grappled with this in two cases in the 1980s, United States v. Knotts and United States v. Karo. Both cases involved radio beepers provided by the government that the suspects did not realize were present and broadcasting their location. The technology was crude compared to today's GPS technology, but it did the job: It enabled the government to know the location of the beepers, and thus, implicitly, the location of the suspects that the police wanted to follow.
Knotts and Karo reasoned that the way to translate the traditional Fourth Amendment protection to the era of high-tech radio beepers was to focus on the information that the surveillance devices revealed. Recall that the traditional Fourth Amendment rule was that the police could always watch a suspect in public (no search), but that they could not enter protected spaces without a warrant or some Fourth Amendment oversight (a search). Knotts and Karo together drew the same line for government-installed location devices: If the device is used to monitor a location in public, then no search occurred (Knotts), but if the device was used to monitor a location inside a protected space, like a home, then a search occurred (Karo).
To my mind, there is a lot of wisdom in the Knotts/Karo line. As I argue in a forthcoming article, it is a constant challenge for courts to adjust Fourth Amendment rules to maintain the level of constitutional protection as technology changes. I think Karo and Knotts did that quite well: They maintained the basic distinction between inside and outside surveillance by focusing on whether the information obtained was information about what was happening outside (the location of property out in public) or what was happening inside (the location of property inside a home). The facts changed, but the Knotts/Karo line maintained the same equilibrium of police power and privacy rights across that shift from one technology (visual surveillance) to another (radio beepers).
III. Does GPS Surveillance Justify A Departure from the Knotts/Karo Line?
That brings us to Jones. In Jones, a GPS device was placed on the suspect's car. The trial court concluded that the evidence of the GPS device in the suspect's garage had to be suppressed under Karo, but that the evidence of the GPS device in public was permitted under Knotts. Only the latter evidence, the evidence of the location of the car on the public street, is at issue in the Jones case. The basic argument of the defendant-respondent in Jones is that GPS surveillance is different from radio beeper surveillance, and that those differences justify a departure from the Knotts/Karo information-based approach. The gist of the argument is that GPS monitoring is just too invasive to be allowed without judicial oversight — the monitoring is too constant, too easily done, too continuous, and too detailed.
As I understand this argument the basic move is to replace the inside/outside distinction with a different approach, one based on more amorphous standard of what is very invasive. According to the respondent in Jones, the Fourth Amendment should not track inside versus outside: Rather, it should measure an overall amount of invasiveness. Under that approach, a person can have a reasonable expectation of privacy in open public spaces just as they can in private spaces. What matters is whether the manner in which the public or private surveillance is conducted is too invasive and creepy to go without Fourth Amendment protection, not whether the monitoring happens to be of public and open or private and enclosed spaces.
I think this is a unpersuasive argument, and that the Justices should reject it. That's true for three reasons.
First, the inside/outside distinction is too deeply rooted in text, history, and precedent for the Court to depart from it lightly. It's such a cornerstone of the law that the Justices should not cast it aside without a good reason. Second, as I have argued in detail elsewhere, the inside/outside distinction serves an important function — one that would be maintained by retaining that distinction as technology changes:
The line between inside and outside also serves an essential function for Fourth Amendment law. The inside/outside distinction exposes to government observation some basic information about what people did and where they went while simultaneously shielding their most personal information from police scrutiny absent cause. This is true because individuals do not usually leave their personal or sensitive belongings out in the open. Instead, they hide them from view by putting them inside in an enclosed space. The inside/outside distinction therefore reveals where people are and where they are going while shielding their most private thoughts and speech from government view.
This division in turn ensures a basic balance of Fourth Amendment protection. If the Fourth Amendment protected everything, then the police would have great difficulty solving crimes; even walking down the street with eyes open would require probable cause. On the other hand, if the Fourth Amendment protected nothing, we would be inadequately protected against abusive government invasions of our homes and private spaces. The inside/outside distinction strikes one of several possible middle grounds. The police can watch a person out in public, but ordinarily they cannot enter the kinds of private spaces where individuals typically hide their more sensitive belongings.
Third, and of most interest here, rejecting the outside/inside distinction requires devising a new distinction, and this proves surprisingly hard. Some line must be drawn, and rejecting the inside/outside distinction means that some new way of drawing the Fourth Amendment line must be created. (It is no answer to say that the "reasonable expectation of privacy" test provides that new way, as this is backwards; we're debating how the "reasonable expectation of privacy" test should be applied, so saying that the test should apply doesn't tell us anything.) Once you cast aside the inside/outside line, what replaces it? The respondent and amici briefs in Jones offer no persuasive answer to this question, for reasons I'll get to in the next section.
IV. What Could Replace the Inside/Outside Distinction?
For the most part, the briefs for Jones (both parties and amici) don't dwell on this question. They contend that the facts of this case are on the other side of the line from those of Knotts, but they never disclose what the line is. The GPS monitoring here is more invasive than the radio beeper in Knotts, the argument runs; It was more continuous, and cheaper, and was more detailed, and it occurred for longer. As a result, the government ended up with more information and there is a greater risk of abuse. On the facts, that is true. But I don't see the the precise point at which Knotts turns into Jones under these efforts to distinguish the two cases. The briefs just argue that the line has been crossed somehow, at some point. Even the proponents of the argument can't seem to identify with any specificity when that happened.
Some of the pro–Jones briefs suggest that identifying the precise line is unnecessary. Courts adopt vague standards all the time, the argument runs, so they can do so here. But I think that argument ignores the reality of modern criminal investigations. State, local, and federal agencies employ 870,000 law enforcement officers in the United States today. When those officers investigate cases, they often go right up to the line that the Constitution allows. If the Court announces to 870,000 officers that they that the radio beeper of Knotts is not a search, but the GPS device used in Jones was, many officers are going to push and prod and go just as far as they can to determine at exactly what point the Knotts territory runs out.
That's a serious concern given that the programmable nature of location devices such as GPS devices. The GPS device in Jones recorded location every 10 seconds whenever the car was in motion. But that's not an inherent feature of GPS devices; It's just what this particular device was programmed to do. If the Court concludes that using a GPS set to record for 10-second intervals for a month is too long, how about a 1-hour interval for 20 days? How about a 20-minute interval for 10 days, then 5 days off, and then a 1-hour interval for 10 more days? How about filtering the location data so it is somewhat less precise, or a lot less precise, or only gives a very lough location of information? The officers can program the GPS any way they like. If the Court rejects the inside/outside distinction and tries to adopt some generalized invasiveness approach, officers will just program the frequency, duration, and precision of their GPS devices so they fall just a hair short of the Jones line. I think that makes the need for a clear line particularly pressing, and the absence of such a line in the pro–Jones briefs particularly telling.
V. Conclusion
That brings me back to the Knotts/Karo line. For the reasons I explained earlier, I think the Knotts/Karo line provides a sensible way to translate the inside/outside distinction from the context of physical entry into spaces to the context of location devices. Given the absence of a feasible alternative — and the possibility of statutory regulation and constitutional regulation of the installation of the device, which I'll address in my next post — I think the Court should stick with that line and conclude that use of the GPS device to record location of a car in public is not a Fourth Amendment search.
(cross posted, with some modification, at SCOTUSblog)
Google Suggest for "United States v."
At least as of this evening, with a search from the Washington, DC area (a necessary caveat):
united states v. lopez
united states v. carroll towing co.
united states v. morrison
united states v. jones
united states v. comstock
united states v. virginia
united states v. booker
united states v. nixon
united states v. watson
united states v. curtiss-wright export corp
Interesting. I'm curious what Google returns for searches from other locations.
Why Involve the CIA in Use-of-Force Operations? Why Not Solely the Uniformed Military?
A perennial question that arises about the use of force — but with particular emphasis now that drones are in the equation — is why the CIA is directly involved in the conduct of any uses of force, including drone operations? Why shouldn't the military be the only ones authorized to engage in these use of force operations? It's both a legal question — is it lawful for the CIA, as a civilian agency, to use force abroad — and a policy question — even if it's legal, is it a good policy idea, rather than having the CIA engage solely in intelligence gathering and analysis, and have the uniformed military carry out any armed attack. (I'm going to Chris Borgen's question at Opinio Juris.)
The comment that follows is not attempting to defend a position on either the legality or the policy. I'm just repeating in informal and summary form what I've been told over the last few years by people here in Washington when I've asked these questions. Take them for what they are worth; I'm not an insider to government and have no access to anything secret of any kind. It goes on for a while, so I'll put it below the fold.
(1) The USG does not see a legal problem with participation by the CIA in the use of force under either international or domestic law; either in an armed conflict as civilians taking direct participation or, under some circumstances not apparently at issue today, self-defense operations outside of technical armed conflict, or together in coordinated operations with the uniformed military. I think this point is not sufficiently emphasized – the USG, at least, does not start from any presumption that it is unlawful, barely-legal, or even particularly unusual that a civilian agency would be tasked to use force in various circumstances. (I have long been struck, on the other hand, that among JAG officers or former JAG, there is sometimes a deep suspicion of that legal proposition. But whatever that observation is worth, for the defense and intel communities at the senior legal-policy-structure levels, CIA participation in operations is a baseline, not a legal reach.)
(2) Whatever issues of accountability might have existed after 9/11 in drone-targeted killing operations, the USG does not see that as a problem now and not for many years at least. Harold Koh was entirely serious when he talked in 2010 about legal reviews inside, and in any case, going forward, as Title 10 (military authority) and Title 50 (CIA and intelligence community) operations, personnel, and so on converge, so too legal reviews and standards. But the USG does not see as it owes accountability for legal standards in these operations outside of domestically required legal review and oversight through Title 50.
I also believe the USG sees many more intelligence risks than those of us on the outside do, in revealing what appear to be merely "legal" standards but which turn out, from the USG's point of view, to have operational implications. Certainly it does not see that it owes accountability to NGOs or the UN; and its stance is that the role of judicial review over extraterritorial targeting decisions is highly limited, at most, even when US citizens are involved. The accountability as such is between the political branches. Many people, including me, have urged the USG to greater transparency as to legal review and standards, not as some supposed legal obligation, but as an important tool for political accountability and legitimacy.
(3) The CIA has been given an important diplomatic and political task in conducting operations in Pakistan that, up until recently and perhaps even still today, benefit from even the fig leaf of deniability. From where I sit, this looks dubious; and I have suggested that we need reforms to our accountability and oversight regimes to encompass more than simply covert-not covert. But people I've talked with tell me that even today there are political benefits to being able to say, "neither confirm nor deny," vis a vis the Pakistan government. I'm not in any of those inside conversations, with Pakistan or Yemen or elsewhere, but it seems to me these are calls government officials have to make. The final point is, however, that the CIA is conducting these operations under the President's direct order; someone has given serious thought to the diplomatic and other costs and benefits of the CIA versus the military conducting cross border raids.
(4) News reports, as Robert Chesney has noted several times, make reference to different internal government legal authorities governing activities of the CIA and the uniformed military. These refer to executive branch legal determinations that apparently set out quite different conditions for the CIA to act cross border and the military. These are not "law" in the statutory sense, but neither are they merely instantly revisable policies, either; they seem to be "structural" internal legal regulation that can be changed but are 'embedded' in ways that change has to be considered carefully. So far as one can tell from news accounts, they go to gradually changing the internal regulatory system for Title 10 and Title 50 operations, and as things currently stand, there is much more flexibility for the CIA to act across borders than there is for the military.
(5) It is important to distinguish the drone operations conducted by the CIA that are part of counterinsurgency to attack cross border safe haven camps and Taliban troop concentrations, and genuinely targeted killing as part of counterterrorism. The CIA does both; at an earlier stage, some people remarked to me that the CIA wasn't interested in the broader CI role because it wasn't interested in doing Air America again and thought it should concentrate on CT targeted killing. It undertook the larger scale raids because of the diplomatic and political reasons above and on account of direct political decisions of the president, not because it was especially interested in being the air arm over Pakistan in support of CI operations. However, conditions appear to have changed in the past couple of years, viz., the success of the drone operations in both programs has come to depend crucially upon ground level human intelligence gathered and assessed by the CIA, and this leads to a crucial operational role.
It might be the SEAL team carrying out the operation on the ground, but with the CIA "running" the operation because it has the intelligence network. But in the case of drone strikes, it might well be that the ground level intelligence leads to drone surveillance that presents a target of opportunity for an armed drone. In principle, one could stick a uniformed operator into the drone chair, but of course if one were serious about legal accountability requiring a military operator, that would have to run through the military chain of command and review. But the USG does not see that as legally required and takes that view with genuinely no sense of embarrassment, so to speak. Much of this might gradually merge as Title 10 and Title 50 operations merge, but the sense of the baseline, which to many legal academics is one place but to the intel community quite another, matters a lot. Neither Panetta nor, so far as anyone outside knows, Petraeus, has the slightest qualm about the adequacy in law and legal policy of the form of review of drone strikes by the CIA. Maybe the academics, advocates, and activists are right, and they are wrong, but it would be a major mistake not to understand the government's baseline legal position.
(6) So the CIA is tasked with operations in part because it has experience, capabilities, and is closest to the intelligence that ultimately drives the operations. The shortest answer for why the CIA is tasked with operations is that it runs the intelligence networks that make the targeting possible. That matters to the USG, I would guess, a lot more than a formal and abstract legal argument that only uniformed military and not CIA should conduct these operations. Take that for what it's worth, but that's my guess.
(7) But there's a further reason for the CIA in operational roles. Woodward in his book Obama's War made passing reference to the CIA creating, or at least funding and working with, certain militias in Afghanistan. The book suggested numbers of proxy fighters that were, at that time, much higher than I would have guessed. These militias seem to be integrated with the intelligence operations which feed the drone and human team strikes, but also act as a ground proxy force as US military forces leave.
As the US draws down its uniformed forces in Afghanistan, in other words, it might turn out that the CIA is the primary force left behind – the French Foreign Legion of this conflict, as it were, always the last out, if it leaves at all. It remains behind to ensure that whatever bad things might happen if the remnants of American counterinsurgency and nation building are swept away, transnational terrorists do not re-acquire Afghanistan as a safe haven. And further to maintain the ground level intelligence network built up with great difficulty over the last few years and provide a staging ground for CT targeted killing raids into Pakistan that otherwise do not have an easy launching pad.
Something like the same kind of ground-level intelligence networks might be contemplated for Yemen, though it would presumably be a very difficult, long-term task. In any case, the right way to think about drones is not as drones, but instead as the deployment of intelligence-driven uses of force, whether human teams or drones, in which the drone is the last kinetic action of a long chain of mostly intelligence activities, including signals, human intelligence, and analysis. Intelligence drives the drones strikes.
(8) Take that for whatever it is worth, and it might be a sci-fi novel, for all I know. But one point still comes out of this picture. There are important, potentially crucial, strategic reasons why the CIA, as the developer and operator of the "dense" intelligence networks and the last important American force remaining behind in Afghanistan through intelligence networks and proxy forces, if anything will have a greater, not lesser, importance in direct operations in counterterrorism. There are strategic reasons for it that are not readily apparent to us as lawyers, and given a legal baseline for the US government that thinks CIA participation in operations does not begin from some presumption of near-illegality, my guess is that the government sees the CIA as fully a partner in operations.
How to Find A Computer Crime Lawyer
As a specialist in computer crime law, I am occasionally asked how to find a good defense lawyer in a computer crime case. If you're a defendant who has been charged in a computer crime case, or you know someone who has been so charged, how do you pick a lawyer? I get this question often enough that I figured I would blog it, in part because I suspect people googling around for a computer crime lawyer might stumble across the post in their search.
The problem with finding a good defense lawyer for a computer crime case is that most defense lawyers are generalists. Defense lawyers often have solo practices, or work in small firms, and they take a very wide range of cases. They specialize in defending individuals against criminal charges, not in particular types of crimes. As a result, it is very hard to find a criminal defense lawyer with genuine expertise and experience in litigating computer crime cases — someone who can handle the statutory issues, knows how to handle expert witnesses, can raise needed Fourth Amendment challenges, and the like. Jennifer Granick comes to mind as one, but there are few others. (Some defense lawyers have websites proclaiming themselves as expert computer crime lawyers, but I would be skeptical about those claims.)
As a result, I think the best path for many defendants is just to hire a good defense lawyer with a good reputation, regardless of expertise in computer issues, and then to consider supplementing that lawyer by discussing the case with a subject-matter expert who can flag some of the issues in the case that a generalist would likely miss. I've served as such a subject-matter expert before, and I think it has worked out pretty well. The basic idea is to have an expert look over the case and spot issues and provide strategic advice, even though they are not hired as the primary lawyer in the case. Depending on the case, you may be able to find experts who will provide that advice pro bono; in other cases, you might have to pay them for a few hours' worth of consulting work. But my sense is that this sort of combination of generalist doing most of the work and an outside expert providing strategic advice is pretty effective.
October 19, 2011
Bleg: The American Revolution as a guide to modern law
The American Revolution took place because of various abuses of the rights of Americans by the British government. So when we seek to understand the rights of citizens in the nation that was created by that Revolution, one useful guide is looking at the negative example of what the Americans were revolting against. For example, Justices have looked at the revolution-provoking use general warrants (Henry v. United States, 1959), unrepresentative government as exemplified by (but not limited to) taxation without representation (Texas v. Johnson, 1989, Rehnquist dissenting), and violation of the right to trial by jury, via use of vice-admiralty courts (Parklane Hosiery v. Shore, 1979, Rehnquist dissenting).
More broadly, as the 2d Justice Harlan wrote in his oft-quoted dissent in Poe v. Ullman, when the Court is "supplying of content" to constitutional "liberty," the Court should have "regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke."
Can commentators supply some additional examples, either regarding specific issues, or general Poe–like rules? Citations to Supreme Court cases are welcome, but also welcome are citations to other sources who are regarded as guides for constitutional understanding–such as Abraham Lincoln, or influential commentators.
David Cortright on Drones
Notre Dame's David Cortright writes at CNN.com on the spread of weaponized drones (Chris Borgen, thanks). He says in part:
Any development that makes war appear to be easier or cheaper is dangerous and morally troubling. It lowers the political threshold of war. It threatens to weaken the moral presumption against the use of armed force.
This is a widely spread meme in the anti-drone literature these days, and many people seem to regard it as a slam dunk against drones. But is this a good moral argument? "Any development"? Suppose that the "development" is a drone that produces both far fewer civilian casualties and increased protection for the forces using them? In that case, the technology is a win-win from the standpoint of the conduct of warfare, the jus in bello.
Precisely the reason why it is more attractive for how to conduct warfare — it is more precise and discriminating — is why Cortright objects to it on grounds of jus ad bellum — that it makes the resort to force easier. (One may, of course, dispute the premises that the weapon is more discriminating, but frankly fewer and fewer serious observers do so.) Cortright is saying that it is a bad idea to have more precise weapons because, by sparing civilians and forces, one might resort more easily to force.
I think that's a bad moral argument — a wrongful moral argument — and I've written at length on it here. It's wrong because at bottom it says, don't use the most precise technology, which is to say, we need to hold those civilians hostage against the possibility that there might be more instances of the use of force. I think we call that using people as "mere" means.
Scalia Predicts that Kelo Will be Overruled
In a recent public appearance, Justice Antonin Scalia predicted that Kelo v. City of New London will eventually be overruled, perhaps soon [HT: George Mason law student Michael Mortorano]:
Scalia predicted the court's 2005 "Kelo" decision saying local governments can take take property from one owner to give to a developer will be reversed someday.
"I do not think that the Kelo opinion is long for this world," Scalia said. "My court has, by my lights, made many mistakes of law during its distinguished two centuries of existence. But it has made very few mistakes of political judgment, of estimating how far ... it could stretch beyond the text of the constitution without provoking overwhelming public criticism and resistance. Dred Scott [legalizing slavery [note: Dred Scott did not actually "legalize" slavery, which was already legal in many states; it prevented Congress from forbidding it in federal territories, though states were still permitted to ban it — IS]] was one mistake of that sort. Roe v Wade [legalizing abortion] was another ... And Kelo, I think, was a third."
I am somewhat less certain than Scalia that Kelo will be overruled. However, I still think there's a good chance. If anything, the controversy generated by Kelo makes it more likely that the Court will rethink its highly permissive Public Use jurisprudence than if the Supreme Court had never taken the case. Before Kelo, most experts thought that the Fifth Amendment's Public Use Clause was virtually a dead letter because two unanimous Supreme Court decisions had declared that almost any "public purpose" endorsed by the legislature counts as a public use. Kelo, however, was a close 5–4 decision that generated widespread controversy far beyond the small group of experts who normally follow takings decisions. Even many defenders of Kelo had to admit that the meaning of "public use" was now once again open to serious debate.
Kelo also got a hostile reception from many state courts, who repudiated it as a guide to the interpretation of their state constitutional public use clauses. More broadly, both legal elites and the general public have become more sympathetic to property rights over the last twenty to thirty years. This trend, especially if it continues, makes it more likely that Scalia's prediction will turn out to be prescient.
Louisiana Bans Secondhand Dealers from Paying Cash for Secondhand Goods
The just-enacted statute is here. A reader asks whether this is consistent with the federal legal tender statute, 31 U.S.C. § 5103, "United States coins and currency (including Federal reserve notes and circulating notes of Federal reserve banks and national banks) are legal tender for all debts, public charges, taxes, and dues." I'm not an expert on this area of law, but I do know that a district court recently upheld a similar law, in Genesee Scrap & Tin Baling Co. v. City of Rochester (W.D.N.Y. 2008). An excerpt from the court's reasoning:
What Congress has sought to do, then, is establish and maintain a uniform national currency, an aim which is incompatible with a system in which individual states can issue their own currency, or declare things other than federally-issued money to constitute legal tender. The Ordinance at issue here does no such thing, however. It merely provides that payment for junk must be in the form of a check, which in turn is payable in United States currency. Accordingly, it is neither unconstitutional nor inconsistent with § 5103.
[image error]
Hey, 2d Circuit!
As some of you may know, the 2d Circuit heard argument yesterday in the Viacom v. YouTube case, a very important copyright case about which I've blogged a number of times before (and in which I co-authored an amicus brief submitted on behalf of some 45 law professors). Last week, I circulated an Op-Ed I wrote about the case to a few of the "national" papers (NY Times and WSJ); I thought (and still think) I was making a point, and a connection, that others have not made in all of the debate surrounding Internet copyright issues (and which are difficult to make in the context of an amicus brief), and I genuinely hope that the judges will indeed stop and consider the deep implications their decision in this case will have for the Internet, and for robust speech on the Internet, for years to come. I was hoping to catch the eye of one of the 2d Circuit judges, perhaps as he/she was sitting on the train heading in to the office, and I figured that the Times or the Journal was a good place to do that. But alas, the editors had other ideas ... So I've printed it below; maybe, if some of the 2d Circuit judges or clerks are VC readers, they'll pass it along ...
*****************************
COPYRIGHT LAW, THE ARAB SPRING, AND THE INTERNET
DAVID G. POST
On October 18th, at the federal courthouse in downtown Manhattan, the US Court of Appeals will hear arguments in Viacom et al. v. YouTube, a case raising important questions about the application of U.S. copyright law on the Internet. Through a fascinating set of links and connections, the citizens of Bahrain, and Burma, and Syria, and . . . all have a very large stake in the outcome.
The case involves interpretation of a provision in the Digital Millennium Copyright Act (DMCA), enacted by Congress in 1998 to update the Copyright Act for the Information Age. The DMCA gave "providers of online services" an immunity from copyright infringement claims arising out of the activities of their users and subscribers. Website operators, for instance, would not be liable for their users' infringements unless they themselves had "actual knowledge" of the infringing activity, or were at least "aware of facts and circumstances from which infringing activity is apparent." At the same time, the statute imposed a condition: A website operator that receives a "take-down notice" from a copyright holder, identifying specific infringing content available at the site, must "respond expeditiously to remove, or disable access to" the infringing material, or it forfeits the immunity and becomes exposed to liability for the underlying infringment(s).
The scheme has been a resounding – perhaps even an astonishing – success. The "notice-and-takedown" process has proved to be an efficient and effective remedy for copyright holders seeking to eliminate, or at least mitigate, the damage from infringing conduct on the massive scale made possible by Internet technologies; hundreds of thousands, or perhaps even millions, of infringing works have been removed from the Internet through the notice-and-takedown process, without the need for costly and time-consuming litigation. At the same time, website operators have a simple and straightforward means of avoiding exposure to potentially astronomical liability under the Copyright Act's (rather generous) damage provisions (which permit recovery of up to $150,000 for each infringed work).
The result? Extraordinary and unprecedented growth over the past decade in innovative Internet services and applications based entirely on participatory user expression – "social media," "user-generated content," or "Web 2.0" services and applications. Thousands of Internet businesses, many of which are now household names around the globe – Facebook, Twitter, YouTube, Blogger, Craigslist, Myspace, Tumblr, Flickr, and many, many others – share one common characteristic: they provide virtually no "content" of their own (copyrightable or otherwise), but instead provide a platform for users to exchange content with one another. Internet users have responded in truly breathtaking numbers: to take one of many examples, YouTube users upload more than 40 hours of video every minute of every day, amounting to more video content each month than the combined output of all three major U.S. television networks for the past 60 years.
It is impossible to imagine this development in the absence of the DMCA immunity, just as it is no coincidence that all of the websites listed in the preceding paragraph are based in the United States, where the immunity has been most firmly embedded in the law. Without an immunity from infringement claims, permitting users to freely exchange content with one another at this scale would be financial suicide; the liability exposure would amount to hundreds of millions of dollars in copyright damages each and every day. No rational investor would provide financing for such an operation, no bank would lend it money, no employee would stake even a small part of his/her future on it, without the reassurance provided by the DMCA immunity.
In short, without the DMCA immunity there would be no Facebook, no YouTube, no Twitter. And without Facebook, and YouTube, and Twitter, Hosni Mubarak is quite probably still the President of Egypt. It's hard to prove that, of course – but most observers agree that these "social media" sites were part of the indispensable infrastructure allowing demonstrators in the "Arab Spring" revolutions to communicate with one another and to organize against rulers who were very skilled in the suppression of dissent and the disruption of communication among their citizens.
That's what's at stake in that courtroom. The entertainment industry plaintiffs in the case challenge the lower court's decision (allowing YouTube to assert the immunity against all of the plaintiff's infringement claims), and seek a ruling that would shift some of the burden of identifying and locating infringing material onto the website operators' shoulders. The legal arguments involved are complex, with much technical hair-splitting on both sides. Along with 45 colleagues from the legal academy, I submitted an amicus brief to the court on YouTube's side, arguing that the language, structure, and purpose of this statutory provision places that burden squarely on the copyright holders through the notice-and-takedown process. But however the court ultimately rules, its decision will go a long way towards determining the kind of Internet we have going forward, and one hopes that the judges recognize that, and that they keep Tahrir Square in mind as they deliberate about the shape of US copyright law.
Wilful vs. Willful
A student saw "wilful" used in an opinion, and asked whether it was a typo. How things have changed in a few decades! Here's a Google Ngrams graph comparing the use of "wilful" (blue) and "willful" (red) in Google's American English sources:
[image error]
"Wilful" was once the only common spelling (and still remains the dominant spelling in British English, again according to Google Ngrams). But then things changed, and now "willful" is considerably more common. Indeed, a quick Westlaw query suggests that "willful" is 10 times more common in 2011 court opinions. It's thus probably wiser to use "willful," unless one knows that one's audience (say, a judge) has a contrary preference; using the more common spelling is more likely to convey your message without needlessly distracting the reader.
Interestingly, the first two references I found for "wilful [sic]" in court cases were in 1962 and 1963, though in those years judicial usage was nearly evenly split between "wilful" and "willful." Those references were the only such "sic" references until 1971, but it the last few years, there have been more than 10 "wilful [sic]" references in court cases per year, which further reflects how dominant "willful" has become.
Eugene Volokh's Blog
- Eugene Volokh's profile
- 7 followers
