Thursday, April 22, 2010

I do not really buy the necessity of a Digital Bill of Rights - though I had not realized the extent of the validity of Lessig’s point that technology may be less subservient to law and the Constitution today, it still seems that the values expressed in the Bill of Rights offer general directions to follow in creating new statutes for the digital age.

Policies that are extensions of First Amendment:

1-Intellectual Property Rights - copyright rules ought to last for a finite period of time. This value, I feel, is already made pretty clear in the existing Copyright Clause, but this rule is not being followed. How long that finite period should be is questionable - I’m leaning on the side that the length of time should be very for different types of media, ideas, etc.

2-Net neutrality is vital to the lifeblood of the Internet. Using an extension of the original reasoning for the Copyright clause, the prospect of ideas flowing on the basis of money and finances rather than their own merits is troubling for the future of a free, democratic society.

3-Allow anonymity when the protocol allows a governmental backdoor, but this backdoor can only be exploited with a super high standard of probable cause.

4-Spam is wonderful. Unsolicited messages should be sent freely, assuming they are not participating in criminal activity.

Policies that are extensions of Fourth Amendment and Katz:

1-Data analysis of reasonably required information is an excellent idea, but collecting broad-reaching private information about people with justification beyond vague national security needs is unreasonable. Don’t do it.

2-Computers have evolved into being an extension one’s personal realm, much like their own home. People have a reasonable expectation of privacy for them.

3-Data sharing will only occur among organizations of similar jurisdiction (federal agencies with other federal agencies, etc).

Policies that are extensions of Sixth Amendment:

1. Cameras in the courtroom are natural extensions of Sixth Amendment. Do it.

*Sorry I’m posting this late - I’ve spent the better part of the day working on a class project video and forgot to post until just now

Wednesday, April 21, 2010

Andrew's take

I started this exercise by going through each of the individual topics that we have covered in class, and sort of addressing what I felt to be my particular opinion about each of these subjects, or at least the subjects on which I felt the most strongly.

Net neutrality: ISPs should not be able to differentiate based on context, for the reason that Internet access has now become equivalent to a vital national service, much like telephones, and thus these ISPs should not be able to discriminate based on the context of the messages that they carry.

Spam regulations: Unfortunately, I’m going to have to come down on the unpopular side of this and state that unsolicited commercial email should be allowed insofar as unsolicited commercial mail is sent through the post. In many ways, this ties to what I said about net neutrality: because email is part of the Internet (OK, so this is a gross technological simplification and probably not correct, but you get the gist), email is also a similarly vital tool, just as the post is, and I don’t think that the government can really restrict commercial speech like this. None of this should be construed to mean that the market cannot devise solutions to avoid spam.

Anonymity: Individuals should have the right to traceable anonymity. I want the standard for the revealing of identity to be quite high, and there should also be clear standards for what the conditions of this revealing to be.

Hosting and content: ISPs and websites that provide forums for content should * not * (and I feel quite strongly about this) be held responsible for any offensive content that may be posted on their website. I cannot understand why some individuals seem to think that Google or YouTube should be held responsible for the content that is posted on their similar. This is of course similar to how bookstores and bulletin boards could not possibly be constantly monitoring what come on their bulletin boards all the time.

Searches of laptops: Searches of laptops should be considered not as an equivalent of searching a book or something, but rather as the equivalent of searching an entire home, and I think that blanket warrants to search a laptop should be treated as not justified (unless in the same situation you could get a blanket warrant to search a home.)

Certainly there are any number of other possible issues that could be discussed. I think, though, that when I reflect upon all these categories and what I’m really trying to get at, it seems to me that what I’m really aiming for with all these rules is for the online world to be as close to the analog world as possible. This is perhaps redundant, given that this is only the subject that we’ve been talking about for the entire semester, but I think that fundamentally I’m kind of optimistic about the ability of the bill of Rights to be applicable to modern day. Sure, the Founders could not have envisioned a type of post in which I could write it, “post” it, and then my friend in Japan can read it one minute later, but I think that fundamentally the strength of the Constitution (and the Bill of Rights) is that it is a living document.

My Online Bill of Rights--Though I'm not Convinced it's Necessary

I agree with the majority of what has been said thus far, and I think the original Bill of Rights is certainly flexible enough to adapt to evolving technologies. That being said, there are undoubtedly a number of issues that do not map very well on to the digital world from the analog world, and as time goes on, I am confident that we will see the Supreme Court decide on many cases that will shape an unwritten online Bill of Rights. I will now attempt to make what I think an online Bill of Rights should look like.

1.1 The government cannot unmask an individual’s online anonymity unless the issue is of clear public safety or the anonymous individual’s activity passes a threshold of clear maliciousness against another individual.
1.2 Copyright law may not expand any farther due to the chilling of creativity and free speech that occurs as the fair use exception get smaller.
1.3 Substantial disruption that negatively affects the school’s ability to carry out its mission to educate may be regulated.
1.4 Net neutrality is not a necessary condition by which ISPs must abide, but if they do choose to sell a product that is not “net neutral,” they must explicitly share that information with the consumer.
4.1 Computers constitute a unique personal item, and accordingly, individuals maintain a higher expectation of privacy for these items. A warrant must be obtained to search a computer for evidence of criminal activity.
4.2 The border (interior international airports included) is a unique area where security concerns demand that expectations of privacy are lower. Reasonable suspicion is a fair standard for search and seizure at the border.
5.1 The jurisdiction of the court depends upon the intended audience of the author who transmitted the digital information in an online forum.
6.1 Cameras in the courtroom transmitting live broadcasts of courtroom cases are prohibited due to the behavior-altering effects of being on camera.

Bill of Rights

Digital Age Bill of Rights

As Lessig points out in his article, much of the current Bill of Rights can be “translated” to protect civil rights in the digital world. However, there are several shortcomings. I argue the first and fourth amendments must be modified to be wholly applicable to the Internet.

First Amendment

Search engine results must be organized by most popular searches in that category. Companies cannot pay search engines to receive the first result for a search in a given category.

Anonymity on the Internet shall be allowed. Anonymity should only be revealed if the anonymous party chooses to reveal his identity, or he commits slander and is mandated by court to reveal his identity.

In an effort to protect children from excessive bullying, the government reserves the right to mandate that children register their age when they create an instant messaging account. Children, then, can only enter chat rooms that also have an adult instant message member who regulates the conversations.

To protect children from obscene material, the government may require websites to have an age verification system installed on the site.

The ability to create a virus that causes a mass number of computers to crash does not constitute freedom of speech. This is a crime against intellectual property, and the perpetrator shall receive consequences.

Fourth Amendment

The government shall not search through another individual’s computer without a reasonable cause.

When information is encrypted, the government can only receive the translation for such information through a court warrant.

The government does not reserve the freedom to access personal information from a social website on an individual apart from what he/she allows the public to see.

An individual must be notified if a private firm is collecting information on him/her.

An individual should be made aware of the information available to the public on him/her and correct any untruthful information.

*I still vouch for NetID’s on the Internet. However, I realize this can lead to privacy questions. Can one’s Internet history be encrypted?

Amending Amendments

While it is tempting to say that the Bill of Rights will be able to provide a solid footing on its own, the past three months have convinced me otherwise. The Bill of Rights should not be seen as the end-all of our civil liberties – rather, it should be seen as a stepping-stone for further elaborations of our rights. Clearly, the Founding Fathers did not have complete ideas of what our freedoms should entail, which is why the Bill of Rights is so vague in particular areas. While Lessig is correct that these ideas of liberty were conceived in relation to the technological limitations of the time, these ideas were also left open-ended. Though these rights are a product of their times, they are also principles from which we take inspiration for how to interpret what our civil liberties should be.

As such, here are the Digital Age amendments, labeled and ordered by the amendment that they amend further.

1.1. In order to promote a free culture of ideas, works of intellectual property shall be under copyright no longer than the natural life of their creator(s).
1.2. Free speech is protected online, unless it is meant to incite violence or harassment within the analogue world.
1.3. As bastions of both liberty and factories of democratic dialogue, libraries shall not use filtering software on their computers, unless they are pre-secondary educational institutions.
1.4. Online anonymity shall be protected, unless the speech is meant to incite violence or harassment.
1.5. The solicitous nature of spam nullifies any free speech protection – therefore, people should be allowed to protect themselves against spam.
4.1. People shall have a reasonable expectation of privacy for both their laptop and desktop computers, unless these computers are owned by a third party such as an employer or a school.
4.2. Due to the idiosyncrasy of telecommunication technology, this technology’s dependence on third-party storage and facilitation shall not be used to nullify the users’ right to privacy.
4.3. A warrant will be required in order to access private databases.
4.4. The right to privacy shall not be assumed at security chokepoints such as airports and at national borders – law enforcement agents may investigate individuals based on reasonable suspicion.
5.1. Courts may claim jurisdiction wherever the offender is located in the analogue world.
5.2. Encrypted software shall be protected under the fourth amendment, however, if there is reasonable suspicion as to the contents, then a warrant may be issued without infringing on the right against self-incrimination.
6.1. So as to retain the austerity of the courts, cameras meant for broadcast shall not be allowed within the courtroom.

Within my amendments, the Constitution remains an influence and indeed an inspiration, though it is clear that the advent of the Digital Age necessitates changes. I feel that these principles I have elaborated can provide a broad enough guide to judges so as to protect our civil liberties in the face of technological change.

Laptop Cameras and Schools

A new instance of a school using laptop cameras to monitor its students at home just came up in the news this week. For the article, click here. Wild.

In Defense of the Bill of Rights

I write not to advocate that our current Bill of Rights be supplemented with a more updated, clearer set of protections for the digital age, but rather to argue that the current document is well-equipped to handle the challenges of a technological transformation. What we need is not a new set of guidelines, but a thorough, fearless approach to enforcing the limitations on government actors set in place two and a half centuries ago.

The problem, I believe, with creating a new Digital Bill of Rights, is that it would inevitably be biased by the current mindset of American culture and politics. No matter how faithfully we might try to adhere to the values of the original document, it is impossible to remove ourselves completely from the political and cultural climate that surrounds us now. Rather than forming a new document based on current conceptions of liberty and freedom, it makes more sense to return, confident and determined, to the Bill of Rights as a living document. Despite the ideological leanings and value shifts of the American people and government, the text remains constant and will continue to provide a baseline, a neutral starting point, upon which all arguments (no matter how biased) must be based.

Lessig is certainly correct that “translation” has its limitations. As with any exercise in applying general guidelines to specific scenarios, the correct path is not always clear. Old case law will not always map perfectly onto new technology. But these are issues for the judiciary branch to grapple with. After all, who better to be charged with preserving the values of the Bill of Rights than those individuals who have dedicated their lives to the study of its application in new contexts? Some degree of faith in the Court is required. Statutes that allow for blatant governmental intrusion will be struck down, while the courts will continue to split over more nuanced issues, as they have always done. But the eventual movement will be towards a rule of law that balances the privacy of individuals with safety and national security interests. This has always been the case, and there is no reason to believe that it will change.

As for Lessig’s prediction that judges will take an increasingly deferential attitude towards the legislative and executive branches in the face of new technology, I see this as quite unlikely. In the past, the judiciary has aggressively faced technological revolution (indeed, changes in the “law of nature” as Lessig puts it), whether in Katz or Terry. To suggest that the judiciary branch will sit idly by while the mixture of technology and government slowly erodes the liberty of the American people seriously underestimates the power and will of judicial actors. For many years, the judiciary has served as an independent mediator between those advocating big government policies and libertarianism, all the while serving as the last line of defense for the rights guaranteed in the Constitution. No digital revolution will change the role or determination of the judiciary.

In one of the early weeks of this class, the Constitution was described as “puttering along,” struggling to keep up with a world that had moved hopelessly beyond its scope. But this could not be further from the truth. Not only does the Constitution remain relevant in arbitrating legal conflicts in the digital age, but really it is the only legitimate source for such guidance. The perpetual push and pull of liberal and conservative courts has not ceased in the face of new technology, but only intensified as the stakes for liberty and safety become higher than ever. In times of confusion, it may be tempting to cast aside “outdated” guidelines in favor of novel solutions, but the only answers continue to lie in a simple document at our fingertips.

Tuesday, April 20, 2010

My Bill of Rights

I don’t necessarily think we need a separate online bill or rights, since our country does not exist in two separate spheres – a physical one and an online one – each of which requiring its own law code. However, some law code for the digital world is necessary to address the issues which our current laws do not adequately address for the digital world. Without getting into a longer conversation about what form that body of laws should take, here is my shot at a digital bill of rights. It does not touch upon every issue that will come up with the internet or even every issue we discussed in class, but, like the Bill of Rights, is just meant to provide general principles of the liberties afforded to those whose lives are in any way touched by a computer. Furthermore, this does not address issues which map easily from the analog world to the digital world, but only new issues which the rise of the internet necessitates that new laws address.

The government, whether directly or through agent institutions, may not make regulate or inhibit any citizen’s online speech from reaching a certain audience, because due to the flexible and open nature of the internet, this would limit all online speech.
Though companies are free to filter and ban spam messages, the government has no authority to limit such communication on the basis of it being spam.
The right of an individual who did something online under the assumption of anonymity to remain anonymous shall not be violated unless a court order is granted to reveal the individual’s identity for reasons of national security or a criminal investigation.
The government may not restrict what is accessible via the internet, nor can it require internet providers to have full net neutrality. However, it may require internet providers to make clear to their customers the details of how their service is not net neutral.
Online communications cannot be monitored except when specific data is approved for monitoring by a court similar to the Foreign Intelligence Surveillance Court for the purposes of national security or by a judge for the purposes of a criminal investigation.
The government may not purchase information about online activity from private companies, unless the specific information it is acquiring has been approved by a court similar to the Foreign Intelligence Surveillance Court for the purposes of national security or by a judge for the purposes of a criminal investigation.
A person can be compelled to give investigators the password to protected files if there is a search warrant for the files under password protection.
The government cannot mandate an encryption system which would give it backdoor access to unlock all encryptions.
Seeing as the internet has no physical place, and some internet cases will have multiple legitimate jurisdictional locations, the jurisdiction for cases involving the internet and multiple physical jurisdictions shall be determined by an Internet Jurisdiction court.

Monday, April 19, 2010

Bill of Digital Rights

The Preamble to the Bill of Digital Rights

Protecting Civil Liberties in the Digital Age
begun and held at the City of New-Haven, on
Thursday the seventh of January, two thousand and ten.

THE Conventions of a number of Students, having at the inception of the Digital Age, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

RESOLVED by Anjali Dalal and Alexandra Orme of the Yale University Law School, in Seminar assembled, both concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.

ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by this Seminar, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.

Amendment 1.1: Search engines shall have the right to maintain searchable copies of copyrighted material, as long their publishing of this material is limited in scope and refers users to the source material, be it digital or analog in form.

Amendment 1.2: Students shall have the right to speak freely on the Internet, provided that said speech does not interfere with the regular proceedings of their school.

Amendment 1.3: To protect minors from offensive material, the government reserves the right to enact online age-identification system.

Amendment 1.4: Online forums shall have the right to post user content without reviewing that content beforehand, provided that they take down offensive or illegal content when notified, in a timely manner.

Amendment 1.5: Individuals shall have a right to traceable anonymity in cyberspace. Anonymity will only be unveiled in the process of civil or criminal proceedings, by a higher standard than the one that currently allows for cyberSLAPPing.

Amendment 1.6: Individuals shall a right to a SPAM-safe internet: all mass e-mail campaigns must come from a reputable source or else be subject to criminal proceedings.

Amendment 1.7: ISPs shall not favor some content over other content. (Side note: Do people think there’s a real need for net neutrality? I wasn’t convinced by Anjali and Alexandra’s presentation of the issue in class, but I’d be interested to talk more about this in class).

Amendment 4.1: Individuals shall have the right to privacy in their own computers and e-mails, except when subject to a warrant specifying specific information to be searched for on the computer, or a subpoena for e-mail header information. The content of e-mails shall remain private.

Amendment 4.2: Individuals shall have the right to view government info available on them online, to fill in gaps in that information, and to correct errors, provided that any modifications are subject to swift government approval.

Amendment 4.3: Individuals shall have the right to be notified when their data is being mined on the Internet.

Amendment 4.4: Individuals shall have the right to privacy in their computers during routine border searches, since no files will be discovered that could not have entered the country by other means (ie by Internet file transfer).

Amendment 4.5: The government reserves the right to utilize any new technologies in the name of border security, provided that such technologies are not physically invasive.

Amendment 5.1: The government reserves the right to subpoena the password for password-protected files, when reasonable suspicion is shown.

Amendment 6.1: Individuals shall have the right to view public trial proceedings via closed-circuit video, provided that they request this access in advance.

Amendment 10.1: The listing of certain rights of individuals in the Digital Age shall not limit others reserved for the people.

Sunday, April 18, 2010

Beginnings of a Digital "Bill of Rights"

Creating a digital bill of rights is no easy task, and I'm sure we will have a variety of opinions, arguments, concerns about diction and syntax, etc. Nevertheless, here's a beginning...


People, having legally acquired data content, have the right to,
(i) backup copies of content
(ii) translate content into comparable formats
(iii) use said content on the platform of their own choice


The right for speech to be transmitted end-to-end and to potentially be heard shall not be unexpectedly censored without the consent of the potential recipient.

Derivative Works:

The right to participate in non-commercial, diverse, modern culture by significantly modifying, reinventing, or publishing derivative works shall not be infringed but in a manner to be proscribed by law.


The right of people to be secure against unreasonable breaches of their personal information and history shall not be violated.

The right of consumers to a respectable and reasonable expectation of treatment by information aggregators at all times shall not be violated except insofar as federal law provides exception.

Open Access and Architecture:

The right to engage in open architecture and open standards shall not be prevented.

Congress shall make no law proscribing the proliferation, locations, and depth of digital connections and networks, or prohibiting the traffic of information on such networks, except insofar as it violates codified law.


The right of people to freedom from surveillance in their network traffic, passwords, encryptions, and otherwise safeguarded communications, against unreasonable searches and seizures, shall not be violated, but upon probable cause, supported by Oath or affirmation, and particularly describing the database to be searched, and the information to be seized.

No data monitoring device shall be installed on any device, without the consent of the owner, but in a manner to be proscribed by law.

Due Process and Compensation:

The right of the people to recourse through an honest and timely system for settling disputes with their data aggregators and their subsidiaries shall not be infringed.

Proprietary, private information shall not be taken for public use without just compensation.

Saturday, April 17, 2010

If it ain't broke, don't televise it...

Sorry this is being posted way after the fact!  When I arrived in Shanghai on Wednesday, there wasn't any Internet in our apartment and, worse, it took me a few days to figure out how to activate my VPN and thereby access Blogger.  In any case, here's what I scribbled during the flight about last week's readings:

I hardly know where to begin with a blog post on the acceptability of telecasting courtroom proceedings to the public.  The text of the Sixth Amendment seems like an obvious starting point for a determination of which parties would benefit from—or be disadvantaged by—the implementation of telecasting.  There is an ambiguity, however, in its jointly valuing fairness and publicity, without explicitly acknowledging that, depending on the nature of a trial, these standards might come into conflict with each other.

Logically, fairness should be the paramount consideration, and publicity should be valued only inasmuch as it’s the guarantor of fairness.  Even taking that view for granted, there is still a spectrum of interpretations about the extent to which publicity should be subordinate to fairness.  On one extreme is the minimalist perspective, according to which prevention of magisterial abuses (à la the Star Chamber) is the sole purpose of airing the proceedings.  At the other extreme, there is a rosier perspective that transparency brings about a spike in civic engagement, were the public to take on a more participatory role in the execution of justice.  The intermediate position envisions the public as something between passive observers and adjunct jurors, in that they should in principle be made privy to any trial of their choosing, but that the onus should be on them to seek out said trials.

Yet another definitional difficulty emerges when the concept of a “public” is placed under scrutiny.  Is a trial sufficiently public if court reporters are allowed to sit in, record their impressions, and disseminate them via print—as is already the case?  Is the public limited to those who stand to be directly impacted by the verdict (as with the McVeigh case, where only victims’ families were given access to closed-circuit TV), or does it encompass everyone without regard to one’s interest in the trial at hand?

Perhaps the thorniest issue of all is this one: with whom does the Sixth Amendment right to a “public trial” reside?  Of the three obvious categories of stakeholders, defendants lay the strongest claim to that right—if only because they stand to lose the most, should the functioning of their own trial go awry.  Just because the accused have the most at stake, that doesn’t mean the public, or the judicial system itself, would be insulated from the repercussions of introducing telecasting.

Unless the press is taken to be a proxy for the public at large, I don’t see the public as being adamant one way or another on this issue.  I also think the supposed benefits to their being exposed to real-life trials, as opposed to fictitious fare like Boston Legal, are overstated because they’ll continue to be attracted to glitzy causes célèbres rather than run-of-the-mill lawsuits, and to sordid soundbites rather than gavel-to-gavel coverage.

However strongly the public favors being able to view trials live and in full, and I happen to see that drive as being manufactured, the degree of their support pales in comparison to the federal judiciary’s opposition.  Given the variability of circumstances to a trial—and, more fundamentally, of interpretations to the Sixth Amendment—why not just do away with a blanket prohibition and allow for telecasting on a case-by-case basis, like all but 9 of the state legislatures have mandated for their own courts?

Flexibility has an almost reflexive appeal to it, but libertarianism in the context of a subjective trial carries with it a set of logistical and psychological drawbacks.  I found myself in all but complete agreement with Justice Winter’s stance against telecasting, in his concurring opinion in Westmoreland v. CBS.  The argument that experimentation with telecasting is unworkable, because it’ll soon become the default no matter what, is a tautology on the part of conservative jurists who, for the self-protective sake of not themselves being judged by the public, are loath to open up their chambers. 

That’s why I was won over by Justice Winter’s disinterested reasoning, which touched upon the challenge of selecting an uninfluenced second jury in case of a retrial, as well as the distortional effects on fact-finding that come from the parties’ hyperawareness that they are being monitored.  What troubled me most of all, about doing away with the ban on telecasting, is the potential for improper signaling, whereby a norm will arise that only those defendants with something to hide will refuse to have their testimony be broadcasted to the public. 

Because a case-by-case approach lends itself to such an arms race, I’m on the side of having telecasting be the exception and not the expectation.  Basically I’m not convinced that improvements in technology automatically mandate that the system be updated, while I am very concerned that any such changes would strike against fairness.

Wednesday, April 14, 2010

These are my definitions…

Immediate public: People surrounding you who can observe your actions, and you, more or less can observe their actions as well.

Wide Public: Free access to view another individual’s actions with or without that person’s consent.


Before I even comment on this weeks reading, I believe it is essential that the idea of having more than one definition of “public” for legal matters could clarify some technological issues. Now that technology is widespread and many have access to televisions, radios, computers, etc., people now more than ever have the ability to learn about other people’s personal issues. Sometimes, personal information can be leaked to the “wide public” through technological means, without the consent of the individual.

For instance, imagine a man is walking down the street when he immediately feels an itch in his nose. He slyly looks around, and relieves himself by picking it. When the man picked his nose, he was in the realm of the “immediate public” where people could see what he was doing. However, chances are he will never see anyone who walked passed him ever again. That action occurred in one moment in time, and in one place, and never needs to be replicated again; however, it can be.

Now, imagine that man arrives home only to realize that his “nose-picking-moment” was capture either by video and photo. When he logs onto the Internet, there are picture of him picking his nose everywhere, and clips of him doing the deed on YouTube. Even when he turns on the television he sees clips of himself picking his nose and embarrassing himself in front of millions of people. In this instance, the act of “picking” within the realm of the immediate public has shifted to the “wide public”. This shift has led to embarrassment and has undeniably damaged the man’s reputation.

Why is this important to when deciding whether or not court trials should be televised? The defendant should have a say in whether or not a trial is televised.

Firstly, one major issue I found with the readings this week was that the jurors, the witnesses, and the defendant was never a central issue of whether or not is should be allowed to televise the trial. It appears only permission from the judge is needed to allow the case to be televised. I argue that permission should be granted from the jurors, witnesses, and defendant to have a trial televised. Doug E Lee noted that the “American public will only benefit from more coverage of trials” as it will better educate them on what the legal system is really like, in contrast to shows like “Law and Order”. When I read this, I immediately asked myself, “What about the individual on trial?” The experience of going through a criminal trial is already heart-wrenching enough—for the defendant, his family, and his friends. To expose his “legal woes”, as Scalia puts it, is only making matters worse. It is dehumanizing to the defendant as exposing him to the nation without his consent gives him even less say over his already jeopardized future. If televised, people may negatively judge the defendant because the saw him on television. Moreover, as mentioned in one of the articles, televising the trial may lead witnesses and jurors to act differently, and make different decisions. Therefore, they should be asked their opinions on whether the trial should be televised as well.

I believe the defendant should have the ultimate veto if he decides not to have the trial televised. Like the man who picked his nose, the trial can have serious negative implications for the defendant without his choice. The man who picked his nose lost his dignity; likewise, the defendant may lose respect amongst many of his peers and the American public, even if he is acquitted for the crime.

However, if the defendant chooses to televise the trial, and the witnesses and jurors consent, then it should be allowed. If the defendant feels this will ensure that televising the trial will ensure the legal process if followed correctly, it should be carried out, despite the judge’s opinion. Most importantly, the checks and balances for legal processes should be kept in tact.

Moreover, to ensure that the legal system is NOT corrupt trials should still be observed by the “immediate public”. Allowing the immediate public to observe the case enables the public to ensure that the legal system is not corrupt. Furthermore, any ridicule the defendant may suffer would only be contained to those who observed the case. For instance, the man who picked his nose would be forgotten had his actions not been recorded. Similarly, the defendant can escape ridicule from the “wide public” by containing the trial to the few who decide to observe the trial.

The most important question to ask when deciding whether or not a trial should be televised is: “Will exposing this trial to the nation’s public promote the sanctity of the legal process?”

The Dangers Outweigh the Benefits

The issue of whether or not cameras should be allowed in the courtroom if both the defendant and prosecutor agree is certainly a complicated one. On the one hand, free access for the public to trials is key in maintaining trust and faith in the judicial system. This idea is reflected in past cases that have reaffirmed the public’s right to attend a trial. With the advent of video technology and the ability to transmit a live stream on television, questions about a public’s right to view trials have come up, but have not been ruled on by the Supreme Court. The decision in the fight that CNN put up to broadcast the Westmoreland vs. CBS trial was that there was an important distinction between the constitutionally endorsed right to attend a trial, and the right to view it on television. I have a few different thoughts on this statement.
First off, many people believe (reasonably, in my opinion) that courtroom behavior, including that of witnesses, changes when people are aware that they are being filmed. The idea that this could disrupt or alter the outcome of a trial is something that is worthy of further research. Secondly, the idea of the court becoming a real-life drama that is beamed into people’s private homes is not consistent with the spirit of the Sixth Amendment’s “public trial” provision. The point is to ensure fair treatment of the defendant, an upholding of the “innocent until proven guilty” ideal, and to foster this greater sense of faith in government. If more people want to attend the trial than exist available seats, I think I would be okay with setting up a publicly viewed, closed-circuit area for people, although that would bring into play the semi-conscious psychological effects of participants being filmed.
My last point has to do with the free press. The First Amendment protects the free press whose job it is to transmit important information to the public. So as long as the press is allowed to attend criminal trials, the information of national importance should still get to the American people, and the values of trust and faith that we place in the judicial system will still be held up to a standard of scrutiny by the free press. Like the judges who have weighed in before me, I agree that the potential dangers to the defendant and the courtroom atmosphere outweigh the benefits of every single person being able to view a televised trial.

What do people think about the defendant's right to have a say in whether or not cameras should be allowed in the courtroom?

Are all televised trials ‘created equal?’

The arguments this week leave me with a central question that I have not yet answered: are all televised trials created equal in content and form? My preliminary answer is 'no'—the type of broadcasting, subject, etc, all make a huge difference.

Arguments for televised trials juxtapose its supposed advantages—namely public education about the judicial process, restoration of public confidence in the courts, and crime deterrence—against its potential disadvantages—namely public embarrassment of defendants and prejudice stirred by publicity.

There is merit to both sides of the argument.

In some sense, televising all trials is not a risk since ubiquitous information raises the costs of locating useful information and decreases the value of information. Take Google, for example: even though all of us might be “Googled” in order to find more about our backgrounds, the sheer scale of information means that most of it is not looked at. And so, cases and defendants who are televised may be forgotten quickly.

On the other hand, however, recall of information may reinforce negative public attitudes toward televised trials. Some evidence suggests that such coverage may stimulate retributive attitudes concerning punishment, which would undermine the notion of true “justice.” And so, televising trials may increase the potential public harm.

While both of these sides present interesting general arguments, my central qualm is that I think the impact of television differs greatly between cases. Does televising the trial of O.J. Simpson have an equal and/or similar impact as televising the trial of Eric Heimark? Probably not. Does televising a trial in full vs. only televising excerpts create a unique impact? Of course. Imagine, for instance, that, when televising, CNN only ever showed the verdict but never the actual trial or only ever showed the prosecutor’s arguments but never the defendant’s arguments. That societal value/impact is very different than showing gavel-to-gavel the entire trial. Nevertheless, very few research studies or surveys of the issue seem to scientifically evaluate these questions.

I therefore hope that before we evaluate which side of the argument has upper hand we see dedicated research studies that seek to determine the social impact of different types of broadcasts and framing the subject of the broadcast. Such studies might help us make a better informed decision about which arguments are more compelling.
In this week's readings, I find CNN's discussion surrounding the Westmoreland v. CBS case very interesting. Sure, the Sixth Amendment assures that individuals are given a right to a trial along with other provisions promised under the text, but do other individuals have the right to view and attend the trial, and how far does this right extend? How public are these trials allowed to be?

CNN argued that it has a right to film federal trials because a) the trials are an area of public forum and b) the public should have the ability to see and hear the trial as it is occurring. CNN further argues that these rights are secured by the First Amendment. Having read the case of Richmond Newspapers v. Virginia, I wonder first of all if newspapers and television broadcasts can be considered synonymous or extensions of the other. Both record news, but television broadcasts have the ability to play things back precisely and in real time, whereas the newspaper goes through the filter of the writer. What bothers me about this decision is that there doesn't seem to be a clear enough distinction between why a newspaper reporter is okay to be allowed into a courtroom whereas a television reporter is not. Both mediums have the ability to affect the same amount of people, one through text and one through audio-visual, and I believe that both have the ability to create sensation around a particular case, which is usually an argument used by judges and defenders against filming a case. What I see to be a main difference between these two mediums is the idea of media control and memory. If a trial is being broadcast in real time, there is essentially no control of audience and citizen reaction to the trial; it happens right as the trial happens and there is no filter or guidance of opinion. The trial is depicted and remembered as it plays out, and there is no dependence on another source's opinions and perspective to guide the reactions (as would happen more easily with newspapers). The courts should decide whether these opinions of the public as generated by the broadcast of the trial will in any way greatly affect the proceedings of the case more than the opinions of the public as generated by newspapers are able. I believe that the full broadcast of trials have the ability to negatively affect the proceedings. In addition, I believe that instead of "enhancing the quality and safeguarding the integrity of the factfinding process," broadcasting has the dangerous ability to turn witness testimonies into performances and show trials (i.e. the trial of Michael Jackson). Although I initially did not agree with the decision of this case, I currently see that in spite of fact that the transition into live broadcasts of trials may be inevitable, more thinking and discussion needs to go into allowing broadcasters full reign to record trials.

Basically, I Hate Cameras

After going through these readings, I find myself inclined to provide my own view of how the Sixth Amendment’s right to a public trial should be interpreted within the Digital Age.

First, it is not incumbent upon the court to televise trials in state and local courts because of the limitations of physical presence bears upon the community. As several of the readings refer to the traditional Anglo-Norman conception of a public trial – a view I agree with – the sense of involving the community was not for the purposes of entertainment, but for the purposes of civic engagement. That is, these traditional trials occurred out of doors for members of a community to attend, implying that the right to a public trial was for some form of community oversight in the proceedings. The key detail is that these trials were meant for the immediate community, the people who could physically attend, since these people would be the ones most directly affected by the results. Thus, it makes sense to say that a public trial is intended not for those outside the community – rather, it is intended for those within the court’s immediate vicinity.

That said it certainly seems incumbent upon federal courts to allow the media within their courtrooms. Given that federal courts have jurisdiction over the entire country, it seems to be within the interests of the court that the public has access to their proceedings. Still, many judges argue against this, seeing it as a degradation of the weighty legal issues into mere tabloid entertainment. I find myself agreeing with the judges. In today’s media-driven world, complex arguments are too often reduced to sound bites that fail to paint an accurate picture of how the judicial process works. The major argument for allowing cameras to capture these proceedings is motivated by the First Amendment. However, in a case similar to that of yelling “fire” in the crowded theater, if more harm than good is done by the freedom, then it should be curtailed. The O.J. Simpson trial is a telling example of how the media can negatively influence a court’s proceedings, and that trial wasn’t even a federal case. Given the weighty matters the federal courts deal with, it is best to err on the side of caution and continue to forbid cameras within federal courts.

There seems to be no necessity to allow cameras within the courtroom within local and state jurisdictions. While theoretically it makes sense to allow cameras in the federal courts, practically, it seems like it does more harm than good.

Question: my worry seems to be that the media will misconstrue or sensationalize the proceedings of a federal trial. Could a CourtTV style channel sponsored by the government that provides unabridged trial footage eliminate these worries of negative media influence?
In assessing whether or not trials should be televised or broadcast on the internet (as a general rule, since of course many cases will call for exception for various reasons), the first step is to determine what the right to a public trial is all about.
Herman clarified the issue quite well, since one will arrive at drastically different conclusions about the issue of televising (which from here on out will also be used to refer to online video streaming) trials based on why one thinks public trials exist in the first place.
Is the point that a trial must be public because the fact that it’s public leads to it being more open, fair, and just? According to this interpretation, which relies mainly on the 6th amendment, all that matters is that a trial is open and that some people show up to it. After you have, let’s say, 20 people observing, there is no reason to allow in another 100.
Another view, however, would say that each individual has a right to attend a public trial. According to this view, which was affirmed in Richmond Newspapers Inc v. Virginia states, every citizen has a right to see the trial because of the First Amendment. According to this interpretation, even if the court already has a lot of observers, getting one more person in who wants to see the trial is important, because he has an individual right to do so.
It seems that while the first reason—ensuring a fair and open trial—is part of the reasoning for having public trials, there are also legal concerns that every individual have the right to see a trial. This distinction is critical for determining how to broadcast trials, if at all.
If it were the case that an open trial was only important so that a few people could be there to make it fair (the first rationale), there would be no reason to broadcast the trial to the many others who might be interested in seeing it.
However, since the second rationale is also valid, there is also motivation to ensure that every person have the right to see the trial. While not broadcasting the trials does not constitute banning the public from them, in many cases it will have that effect. If someone wants to observe a trial happening across the country, it is unrealistic to expect them to travel there unless they are directly involved in the case. By prohibiting the broadcasting of the case, the government is denying them the right to see the case, in essence.
But how can we go about broadcasting trials in a responsible manner?
Again, we are dealing here with creating a general rule for trials, which of course is subject to case by case exception.
The issue of scope—the fact that it could reach many more people—should not be an issue in these discussions. If 5 people are allowed the right to see the trial when they walk into the courtroom, then theoretically so are 5,000 people. What matter is not the new scope of the new way of watching the trials, but the new nature and substantive differences in how the trials will be observed.
As was pointed out in the readings, there is an important substantive difference between how one sees a trial in court and how one would see it on TV or online. While in court one sees the entire proceedings, on TV and online people would likely end up watching clips of the trials, which would take things out of context and distort them. People would see one dramatic moment of the trial and not understand the actual situation. With this, of course, snippets of trials would make great hits on Stephen Colbert’s show or on youtube. The court system would become more of a show than anything, and our justice system would clearly suffer.
So what should be done? There are reasons to open up the courts to everyone, but the reality of how this would unfold would pose serious problems. I do not know the right way to balance this, but I have one idea to propose. Watching a trial has been, and should remain, something for those who are seriously interested in watching the proceedings – not a way someone can entertain himself on youtube for a few minutes. So if we want to prevent trials from being edited into small clips and turned into entertainment, but allow people to watch a trial from their homes, what do we do? Perhaps, the government could find a way to have the trials streamed online in a way that prevents people from recording, taping, or re-watching it. This would allow people who want to watch a trial watch it, but would prevent it from being turned into a show. I know this idea is sort of out there, but I’d be curious to hear how people think we can address the competing issues of access and the dangers that can come with streaming trials.
“To make entertainment out of real people’s legal troubles is quite sick,” Scalia said. “...I don’t think it is right to make enjoyment out of litigation, civil or criminal.” This is certainly true, but this same argument would apply against print journalism in the courtroom, which sells newspapers based on ‘real people’s legal troubles,’ but which, under, Richmond Newspapers v. Virginia, the court acknowledges as absolutely necessary in maintaining a fair and accountable courtroom. Newspapers function, as Richmond acknowledges, work as an effective means through which one can, shortly after, learn of the days events and reporting. Moreover, physical public access to courts is absolutely necessary, the courts deem. In 1984, the justices decided, however, that the gap between print journalism and physical presence and video was such a ‘leap.’

In 2010, from a multimedia perspective, the line between print journalism and video is dramatically blurred. Sites like HuffPo, the New York Times, and The New Yorker, major presences in the online news realm, heavily depend on video for their reporting. People teleconference for their work, substituting the need for physical presence. Whereas in 1984 video was much more difficult, quality video posting is now, rather simple. The distinction between video and journalism, which Scalia makes, is now largely a meaningless one.

Moreover, Scalia’s point that video journalism would only offer highlights is more an argument against journalism as an institution than video - as Richmond recognizes, journalists filter out bits of information to produce a story - which Scalia protests.

From a Bill of Rights standpoint which demands a public’s ability to access court proceedings, I think that video presence is a logical extension in the 21st century. Claims that video would hurt people’s cases and would have negative sideeffects (excluding special circumstances like witness protection) are questionable - people on the stand swear an oath and realize the magnitude of their statements.

Question: What are some modern distinctions between video journalism and print journalism which may alter the role of the two?