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

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.

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.

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.

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...

Reproduction:

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

Speech:

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.

Security:

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.

Privacy:

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.

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.

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?

All The World's A Stage

Proponents of the Sunshine in the Courtroom Act and similar bills argue that video broadcasts of court proceedings will serve to educate the public. According to their reasoning, the inner workings of a government that represents the people should be able to seen by the people. The meetings of Congress and the actions of the executive branch are televised; why should the judicial branch alone be exempt from public scrutiny? After all, everybody likes government transparency. This reasoning is especially compelling when we consider that the Sixth Amendment specifically describes our right to a public trial.

But such thinking ignores the unique nature of the judiciary. The elected officials in the executive and legislative branches are familiar with how to comport themselves in front of a camera: throughout their campaigns they must constantly deal with media coverage. In a trial, on the other hand, everyday private citizens are involved, and this makes all the difference. There is something about knowing there is a camera pointed at us that evokes a visceral response in all of us; when we see ourselves on the Jumbotron, so to speak, we start to dance to the music. This is exactly the sort of biased behavior that does not belong in America's courtrooms.

In a court case, people's private woes are involved. My gut feeling is that broadcasting these woes to the world would create a very different atmosphere in a courtroom than a local audience only. As Richmond Newspapers v Virgina shows, it is already hard enough for a judge to reach a verdict even without any outside influence. Hence Souter's outspoken objection that "the day you see a camera come into our courtroom, it’s going to roll over my dead body."

Even if trials do end up being televised, I doubt many more people will watch them than watch C-SPAN now. Nevertheless, I worry that any televisation trials will remove the austerity of our current judiciary. Maybe it's because I'm a Classics major, but I find courtroom sketches along with the absence of cameras from courtrooms to be neat and worthwhile traditions. It adds to the gravity of the court, and this, by itself, has value.

Ruminating on television

To be honest, I don’t know how I really feel about television broadcasts of trials. On the one hand, CNN’s argument in favor of television broadcasting makes some sort of intellectual sense, and I was especially struck by the line (I forget where exactly it is) that judges’ interest in preserving their self-image should most certainly not be one of the main reasons for prohibiting television.

On the other hand, if one adopts an originalist perspective of what the Founders had in mind, it comes across as somewhat different. If one had a vested interest in a trial, wanted to observe good government, check for corruption or any number of the reasons cited, while one would have had open access to the trial, it required some sort of action. In other words, it is not as if trials were passively beamed into the households; one had to actively seek it out.

Passively beaming trials, of course, is exactly what television broadcasting is. And as much as I usually disagree with Scalia on political issues, I sort of find myself in agreement with him in that I think that the televising of trials does not fundamentally address any of the principles that support public access to trials. Watching a sound bite of a trial for 10 seconds does not aid a citizen in deciding whether justice is being meted out in any particular situation.

However, this line of reasoning is problematic in that if we took it to its logical extension, then essentially we wouldn’t ever be able to adapt any modern technologies to old problems. At this point, what I’m reminded of is the situation in which a trial was moved more than 350 miles away, and thus crime victims were able to watch the proceedings on closed-circuit television. Would this perhaps be a solution? Allow televising in trials, but either require that citizens go somewhere (say, public libraries) to watch them, which would set up some sort of barrier (which seems to be what I want to do in the first place), or perhaps prohibit news stations from only showing short clips, i.e. if a trial is televised, it must be televised in full or at least not in 15-second increments?

This all strikes me as rather Orwellian, of course, and I have the strong feeling that there are any number of constitutional problems with this type of haphazard solution that I’ve concocted to this issue. But fundamentally, I find that this is one of the situations in which I actually sort of agree with the more conservative interpretations of statutes, and say that perhaps modern technology should not be included in this problem.

Video Journalism and "Richmond Newspapers v. Virginia"

In Richmond Newspapers v. Virginia, the Supreme Court held that the right of the public and press to attend trials is guaranteed under the First and Fourth Amendments. The Court relied heavily on the importance of allowing public access to trials, and the well-established historical legacy of this value, dating back well before the United States even existed. The Court held that it was vital to keep the doors of the courtroom open, so that justice would not be “done in a corner or in a covert manner.”

However, in Westmoreland v. CBS, the 2^nd Circuit ruled that the right for the public and press to attend a trial is not the same as the right to see a trial televised. Despite the varied benefits of video coverage, which include the ability to provide a convenient and vivid representation of actual court proceedings, and a potentially drastic increased range of access to proceedings for everyday Americans, the court found that cameras need not be allowed into the courtroom.

This case, along with similar denials of camera access to courts at the state and federal level, is largely inconsistent with the Court’s ruling in Richmond. Although the medium in question has changed from pens and paper to cameras, the mission of journalists remains the same. Just as newspaper writers serve as both reporters and watchdogs, video journalists have the same potential to simultaneously disseminate information and keep a watchful eye on the justice system. Nevertheless, many courts have drawn a distinction, which seems somewhat arbitrary and artificial, between print journalism and video journalism.

Justices suggest that allowing cameras into the courtroom will give the public a skewed perception of the true manner of proceedings, as people will never watch the entire trial, but rather only highlights. But they fail to establish how video journalism differs in any meaningful way (in this respect) from print journalism. After all, the courts allow print journalists into the courtroom, even though they only highlight the most important, interesting, and relevant aspects of cases in their stories. How is selective video editing materially different from writing a story? As mentioned above, the Court ruled in Richmond that allowing the press into the courtroom is important because of the valuable and necessary service they provide to the public. Video journalists can provide the same service, simply in a different medium.

Furthermore, as long as courtroom dramas and other highly unrealistic legal shows remain on television, it seems fairly obvious that the public will not have an accurate view of court proceedings, which will only to be corrupted by misleading video footage. Rather, any actual footage from court proceedings, dry as it may be, will likely only reveal some of the realities of the justice system. If judges really feel so strongly that the public must have an accurate perception of the legal system, restricting camera access hardly seems to be the most effective means of accomplishing this goal.

In Richmond, the Court allowed full access to print journalists. It did not require them to only record verbatim the entire transcript of the trial, but rather allowed journalists to do their job and report the workings of the justice system to the American people. The greater goals of the First Amendment, as well as the justice system in general, will only be fully served when this right is properly extended to video journalists as well as print reporters in all federal and state courts.

As we progress through more of the course, I find that I generally swing more to the side of privacy protection and away from advances of government protections and enforcements.

My initial reaction to Scarfo, though, was one of exasperation towards the critics of the FBI; investigators had probable cause and were granted a warrant to search Scarfo’s computer. The KLS program shut down whenever the modem was active and so it did not intercept other wired communications and so it was as little privacy invading as technologically possible. It seems like KLS software generally meets all 4th amendment requirements for a search. And I agree with the judgment that, though KLS software goes through non-password -related information, it is a necessity to find the password - law enforcement has to go through lots of irrelevant information on a person or group in investigations to find incriminating evidence.

Though a password may represent a subjective expectation of privacy for Scarfo, I don’t feel that society’s judgment would overlap - if investigators can meet a high standard probable cause and the suspect is known to engage in numerous illegal activities in the physical world, as they found in the Scarfo case, I would think that a reasonable person would agree that the suspect has no reasonable privacy in the digital realm.

One place where I see an error in my views: keylogger software or full access to an entire managing server, which potentially holds information of thousands, if not millions, of people would be an unfair infringement of other people’s rights to privacy all in the name of hunting down information on one person.

Dormant Commerce Clause: Does it really exist?

Personal jurisdiction involves numerous sections of the Constitution and obviously is complicated by the difficulty of establishing legal boundaries. Out of the cases and doctrine that revolved around boundaries this week, one area particularly troubled me. In striking down a New York law in American Library Association v. Pataki, the majority makes reference to the so-called “Dormant” Commerce Clause. Quite frankly, while I like the idea of this clause and see its potential efficacy, I am not sure where this doctrine comes from textually, if at all.

Practically, a Constitutional mandate like the Dormant Commerce Clause would serve a myriad of useful purposes. For instance, a clause like the Dormant Clause would be a “pro-business” clause that helped to maintain a prosperous and stable national trade system. Most notably, it would prevent states from internally enacting legislation and then effectively “outsourcing” that domestic legislation to other states. A Dormant Commerce Clause would stop states from burdening our system of interstate commerce through intrastate legislation.

I am very troubled, however, that this Dormant Commerce Clause even exists. I do not think that, based on the U.S. Constitution’s text alone, it is unequivocal that the Commerce Clause implies a negative converse. When Article I merely grants Congress the power “To regulate commerce… among the several states,” I hardly think that the text itself suggests a restriction prohibiting a state from passing legislation that may be prosecuted only intrastate, even if it burdens the interstate system. Surely the Framers believed that a state had the right to “regulate,” even when regulations were “non-competitive”?

Of course, a “burdensome” state regulation would likely place a state at a competitive disadvantage, so less people would want to live there or do business with it. This would be bad for business over the long run, so a state could not likely maintain unequal regulations. But I think that Constitution persevered some right for “states to be stupid."

In the case of the Internet, the Dormant Commerce Clause is even more socially and economically useful than ever before. Because people do not necessarily realize what states they are doing business with, they may not be able to knowingly avoid the “stupid” states with bad regulatory laws. That is one reason why the decision in American Library Association may make some sense.

However, while obviously legally and financially pragmatic, I remain deeply worried that the Dormant Commerce Clause type of jurisprudence has been invented over time instead of textually in the books. If the former is the case, then I think we ought to write new federal legislation or a Constitutional Amendment that explicitly makes clear the intent of the doctrine rather than rely on the legal ambiguity of the existing Commerce Clause.

Internet Jurisdiction and a Response to David

First of all, this internet jurisdiction material, perhaps more so than any other idea that we have looked at, does not map at all onto what the writers of the Constitution had in mind, simply and obviously, because the idea of an alternate cyberworld was so far from feasible two centuries ago.

I tend to agree with the basic logic behind the US case in Connecticut that was concerned with the intended audience of the online material. I take issue with a couple of points though. While Warden Young certainly seemed to be overhyping the amount of criticism that he would get back in Virginia, all it would have taken was for one local blog to hyperlink to the Advocate or Courant story, and voila, the material is all over the state. Or, in terms of time, if Warden Young decided to run for a Senate seat ten years down the road, that story could be pulled out of the archives and ruin his political campaign. The idea that material posted to one singular webpage stays there is generally untrue, and while I recognize all of the problems associated with prosecuting a slanderous claim in any of the fifty states according to whatever their specific laws are, the viral nature of the web is one of its most unique tendencies.

As for David's idea, I feel like access to the Internet is constantly expanding in the same way that the universe is always expanding--there's just this mass of information constantly getting bigger and bigger. To start to restrain who gets access to what material, based on some arbitrary person claiming that a standard of what is acceptable in this or that state has been broken, seems like an idea that's pushing against the momentum of this vast expansion of knowledge. Also, state firewalls a la China makes me seriously uncomfortable. Do I have an alternate solution? Not really, I think the court basically has it right--I think they could make an addendum for material that a reasonable person thinks could go viral (especially material about a private individual, not a public official), and hold those responsible for posting it, even on a blog or local newspaper site, if it ends up getting hyperlinked into other states.

Too Much Evidence, Not Enough Memory

I find nothing wrong with the ruling of the Scarfo case. The Court was in its right to admit the evidence found on Scarfo’s computer, despite the fact that the KLS programming was used to uncover the password. Clearly, the FBI had a warrant to search Scarfo’s computer and the Judge’s order clearly stated, “’the FBI can capture the necessary password to capture files by recording the key related information as they are entered”. The KLS allowed the FBI to uncover the password to retrieve the files. I suppose that there may have been an “over-collection of data” to retrieve the password, but it is not as though that extra information was included in the case. The only incriminating factor included was the evidence collected from the file.

Admittedly, it is a bit unsettling to think the FBI “may not know the exact nature of the incriminating evidence until they stumble upon it”, thus, they will see more information than is necessary to find the evidence they are searching for.

Nonetheless, with the amount of information that computers contain, it gives one individual perhaps too much insight to another person’s life. It is almost the same as peering into an individual’s mind and learning of their thoughts and personal history through various documents and pictures. Even for someone who may be charged with a criminal offense, perhaps this degree of interference is too much.

However, when analyzing the high number of cases the FBI searches, I believe it is plausible that such personal information from one individual is not particularly memorable to the detective. The traits of the individual under question is one of many that belong to other people charged with criminal offenses. It is as though that one person’s history in the memory of the detective is lost amongst all other cases the detective researches. Perhaps our fears of giving the government access to our personal lives through a computer are too overbearing.

The (Overstated?) Problem with Transnational Jurisdiction

From Akhil Amar's "Con Law" lecture, which I audited my freshman year, I was already familiar in passing with the prerequisite of judiciability, but not with the internal distinction between personal and subject-matter or territorial jurisdiction. From the readings alone, I couldn't get a sense of whether the scope of personal jurisdiction has been expanded in other countries like it has in the United States, where "long arm" statutes may confer jurisdiction on a state court even if the defendant is located outside that state. The only condition that needs to be satisfied before long arm jurisdiction can take effect--and precisely what is being called into question, now that the Internet has blown up into a hive for business transactions and criminal activity alike--is that the defendant have "minimum contacts" in the forum state.

Even when a paywall limits access to subscribers only (as with the defamatory Barron's article that was the basis of Dow Jones v. Gutnick), or when the host site is so obscure as to preclude notice far from its physical servers, it is generally the case that any material uploaded to the Internet is capable of being viewed by a worldwide readership. This, in itself, should be grounds enough for a reevaluation of what it means for a potential defendant to have "contacts" in another locale; in theory, whatever he publishes online could be downloaded by--and thus constitute contact with--an associate of the plaintiff, no matter where she lives or works out of.  

Because the Internet has enabled communication to transcend geographical boundaries, the purpose of personal jurisdiction should be called into question and brought up to date accordingly. One of its original functions was to prevent instances where the defendant would be hard-pressed to show up in a distant court, though tele-conferencing might provide a fix to that logistical problem (assuming it is possible to waive the 6th Amendment's stated right to confront one's accusers).  

The more significant reason why the idea of personal jurisdiction shouldn't be done away with is that it provides a check against double jeopardy, the potential result of multiple prosecutions. That, yes, may be an unfavorable byproduct of allowing for transnational jurisdiction, but I think that procedural concern is outweighed by the intuitive absurdity of letting perpetrators of online wrongdoing evade punishment altogether, just because there's a loophole with respect to personal jurisdiction. In order to close off this sieve of impunity, which virtual villains have managed to fall through, there ought to be a flexible understanding across judicial systems in different states (and countries, even!), as to striking the right balance between respecting jurisdiction and redressing torts.

Passwords as self-incrimination

In U.S. v. Scarfo, the court ruled that handing over a password is considered self-incrimination, and thus a court cannot compel one to turn over a password because of the 5^th amendment. How are we to deal with the issue of passwords? On one hand, it involves forcing someone to speak and give information which will probably incriminate them On the other hand, it is just part of a search and investigation process, which the government is allowed to do for a trial. Ultimately, for both theoretical legal reasons and for practical reasons, I believe this ruling is problematic and should be reversed.

The ruling referenced Doe II, in which it was decided that a person could be forced to ask a bank to turn over his records to the court, even if doing so would lead to his incrimination. This is because the information already exists, and the defendant is not being asked to provide previously non-existing information to the court. In a sense, the court is only doing a “search” of information about someone, and of course when there is a warrant a person does not need to consent to a search which may turn up incriminating information. In that respect, I think this line of logic makes sense.

However, the court then said that passwords leading to personal documents are different than the case of Doe II. Their argument is that while the information may already exist on the computer, the defendant is being asked to produce new information that could not have been searched previously—the password.

However, I do not think this is a good distinction to make, and I do not agree with its underlying logic. Ultimately, someone is going to be prosecuted for the contents of the laptop. While the password provides access to that information, it’s not as if someone is being punished for their password (i.e. the court rules their password is vulgar or contains pornography). Since the data which one is going to be punished for is already stored on the computer, “forgone conclusion,” it should be fair game for the court to use it, even if it requires compelling a person to turn over a password. Being forced to hand over a password is just like forcing a person to cooperate with a search – i.e. once authorities have a warrant, asking someone to show them all the places in the house where they are storing drugs.

I also think there are powerful practical reasons for making it legal for courts to demand passwords. Nowadays, data, communications, and evidence of all sorts are being stored on computers. All any criminal would have to do is password-protect their hard-drive, and then they would not have to worry about authorities finding out all of the information about their activity. Of course practical reasons alone cannot justify sacrificing civil liberties, but this is just an added concern, in addition to the legal reasons above.

However, maybe this is taking it too far and getting rid of too many privacies. Are there perhaps cases in which maybe people should get the right to not hand over their passwords? Do the circumstances of the case matter?

Internet jurisdiction, as written by Zittrain in Internet Jurisdiction, is extraordinarily difficult to handle and define due to the fluid geographical nature of the internet. While I recognize that much of the Internet jurisdiction cases must be handled on a case by case basis, the ruling made in the Young v New Haven Advocate case made me question some of the ways in which these cases are decided. I agree with the decision that the judges made stating that the state of Virginia does not have personal jurisdiction over the Connecticut newspapers because the newspaper reporters in Connecticut did not "manifest an intent to aim their websites or the posted articles at a Virginia audience." What interests me most about this decision is how fluid and subjective this precedent can become in the future and how Internet jurisdiction cases will highlight the differences between state statutes and manners of prosecution.

Personal jurisdiction of the Connecticut newspapers in this case was relatively clear cut; as stated in the court syllabus, the main subscribers to the newspapers lived in Connecticut, and some of the material published in the newspapers was published online. Because the main audience of the newspapers are residents of Connecticut and has probably stayed this way for a long period of time, it would make sense that the news reporters were writing to inform the Connecticut audience that has long followed these newspapers. In addition, the websites where the articles were published were focused on the interests of a Connecticut audience. However, as clear as this decision was, how will it be affected when/if newspapers are published completely online or have the same material on and offline? I can't imagine judges will ever have as easy of a time figuring out whether or not a victim has jurisdiction to prosecute his offender. As broad as this following statement sounds, my natural instinct is to say that the victim is the one with the most say in determining personal jurisdiction (in this case, if it were to have been decided that Young was indeed able to seek redress from the CT newspapers, then the CT newspapers would be tried in VA courts according to VA laws), and that seems to be the most fair way of handling these jurisdiction cases. What further interests me and seems to be an implication of these personal jurisdiction cases is the manner in which state statutes will have to in the future mesh together in order to prosecute individuals. As stated on pg. 32 of Internet Jurisdiction, "our nation is too big and too diverse" for all states to have the exact same statutes to handle and prosecute cases, such as child pornography or illegal immigration, due to the differing cultures of each state. With the growing number of personal jurisdiction issues, I believe that every state will sonner or later be forced to acclimate towards each others' statutes and methods of prosecutions in order to try individual fairly and equally across all states.

Problems with Scarfo

In Scarfo, the court decided that the KLS search was fine, even though it took in more information than the very specific parameters that Judge Haneke had outlined. I’m of several minds about this decision. My gut reaction was that I had a big problem with this, because it seemed to me that the government would be able to use these types of searches as a flimsy search to perform any type of computer searches that it wanted. On the other hand, though, I understand the Court’s logic – how can the FBI be expected to know what the password is if they don’t filter through all the keystrokes logged on the computer (since if they knew what the password was in the first place then it would be completely unnecessary to do this search in the first place)?

Perhaps what I find more problematic is the fact that the government could use other materials that it uncovered via keystroke loggers such as this as evidence, and this strikes me as a bit problematic. The Fourth Amendment isn’t supposed to just allow huge blanket searches by the government without any sort of suspicion. However, if we accept that a search that ostensibly doesn’t exhibit “surgical precision” as OK, then the plain-view doctrine – which itself seems eminently reasonable – would dictate that the government would be able to make use of any sort of evidence it uncovered while doing this type of search. This now seems to me to be more of the problematic type of blanket search that Scarfo claims the government’s search to be.

A mostly unrelated problem, but in the same case, is how the Court seems to define if the Wiretap Statute applies to this case. I think in 2001 it would’ve been very easy to define when Scarfo was transmitting information via a modem and thus via a wire. However, in 2010, when wireless Internet access is the norm and we are basically connected all the time, how would we separate (if it’s even possible to separate) when we are transmitting information over a wire and when we are not? Presumably, even wireless Internet access goes through a wire at some point, or at least this is my understanding. But in today’s world when my computer could be sending information online without my even knowing it (this is not necessarily malicious: automatic operating-system system updates, for instance), then it seems that we really can’t make this distinction, and the aging of the Wiretap Statute seems even more evident.

Two, Four, Six, Eight, We Do Not Incriminate!

The Boucher court found that the defendant could not be compelled to give his password on the grounds that giving this information would be found self-incriminatory under the Fifth Amendment. I find myself uneasy with the court’s ruling, for it seems plainly obvious that even though the information is not in a visible form before the Court, there are still plenty of details that confirm both the contents of the laptop and who has control over the data stored within the laptop.

In reference to the Court’s decision that entering the password would imply both knowledge and control over the protected content, it seems that the Court is splitting hairs. Surely simply the fact that the computer was found in the defendant’s possession – the back seat of his car – is enough to assert ownership. Further, the fact that the defendant claimed that he tried to delete images whenever he received them implies that he has some form of control of the contents of the laptop. The defendant showed that he had access to the portion of the hard drive called drive Z and expressed discomfort of this perusal. Simply the fact that a password protected a portion of the laptop implies that there is someone who controls the information, the same portion that the defendant previously showed he had access to.

Further, the Court held that unlike Doe II, the defendant would have to reveal his thoughts and contents of his mind. It seems that the defendant has already done so due to his navigation through his personal computer. He has demonstrated his knowledge of the computer’s contents by directing the detective toward s a particular file that was requested. Still, the Court holds that it is not without question that the defendant possessed the password or has access to the files. Perhaps it is not an absolute certainty, but if someone I know is carrying a laptop and doesn’t know the password to a particular portion of it, then the carrier is either a computer technician or lying through their teeth about knowing the password.

In conclusion, it seemed that the Court was too worried about the Fifth Amendment and forgot their common sense. My question for the week: is possession of a case known to contain an illegal product enough to prosecute the possessor, as I seem to think in this case, or does law enforcement need to actually show the evidence?

A Potential Solution to Our Internet Jurisdiction Woes

One of the underlying assumptions that courts have made when defining Internet jurisdiction is that the creator of a web page has no way of controlling which users will visit that page. My knowledge of web site construction is limited, but I can hardly believe that this is the case. Google, for instance, is somehow able to use your IP address to identify where you are – for example search “time” right now and it will display the local time for New Haven specifically – so it does not seem that it would be out of the question for the website to also modify its other functions based on the geographic locations of its visitors. The Cybertelecom website linked to in this week’s assignments ostensibly does something of this sort, since it claims that it will display a secret message to viewers from Canada. (I’m inclined to think the author isn’t joking about this, but of course I can’t be sure.) Which leads me to ask: is there a way to code a website such that it blocks access to users in certain states?

Such coding has the potential to resolve many of the Internet jurisdiction problems that the courts have been struggling with. I envision a process similar to the manner in which websites like Youtube take down copyright-infringing material shortly after they have received notice that it exists. Just as Youtube cannot always be expected to know that it is hosting illegal videos, no website owner should be expected to be aware that he is violating some sovereign power’s law. If the owner could remove privileges for visitors based in specific locations when notified of his error, he would eventually be able to limit access on a case by case basis until only those users in states with the most favorable laws could see the controversial material. Since it transcends state boundaries, the Internet is tough thing to regulate. This is one potential means by which to do this.

Importance of Court Skepticism (II)

In United States v. Scarfo, the majority relies heavily on the testimony of Randall Murch, a Special Agent of the FBI working as Deputy Assistant Director of the FBI Laboratory Division’s Investigative Technologies Branch. As information about KLS is mostly classified (due to, what else, national security concerns), Mr. Murch’s testimony is needed to ascertain exactly how the warranted search was conducted. In his statement, Mr. Murch claims that claims that the FBI agents installed KLS in a manner that specifically avoided recording keystrokes when the modem was turned on, so as to avoid intercepting e-mails and other inter-computer communications, which would have violated the warrant.

That the court’s decision turned on the after-the-fact assurance, by an FBI agent, that the FBI practiced restraint in conducting their search is largely inconsistent with established 4^th amendment doctrine. Allowing unfettered, general warrants, which require restraint on the part of the investigating officers has never been a practice sanctioned by the court. Likewise, courts have been unwilling to accept “self-restraint” testimony as conclusive (most notably in Katz, rejecting the officer’s assurances that those conducting the wiretaps took great caution to only eavesdrop on relevant conversations in the phone-booth).

This trend should not come as a surprise, for the 4^th and 5^th Amendments were conceived with a specific distrust of the federal government in mind. Enforcing these protections through trusting the discretion of government agents seems inherently dubious, and in practice would likely eliminate the very values those Amendments are designed to preserve. Allowing governmental agents to interpret and present, post-hoc, the events of a case leaves too much room for corruption, misrepresentation of the facts, hindsight bias, and outright lying. After all, more than a few court commentators have described the battle over civil rights as a perpetual tug-of-war between the text of the Amendments and the enforcement arm of the government. Judicially empowering one side of this fight would upset the delicate balance that has been forged over the years by the Court.

Of course, expert testimony will always be necessary to gather the necessary facts of the case. But the bottom line is that courts are naïve if they entrust this testimony to governmental actors who may have a strong interest in the expansion of the enforcement arm’s power. Perhaps some sort of independent oversight mechanism would be in order. An agency or committee, with men on the ground or on the inside of the FBI, whose job it would be to ensure that violations do not occur and that investigations are accurately recounted in court, would preserve the authenticity of court proceedings without presenting an undue risk to national security.

D.C. Circuit decision on the FCC's power to impose net neutraity rules

Remember our discussion about net neutrality? The D.C. Circuit court has just ruled that the FCC doesn't have the authority to require broadband providers to give equal treatment to all Internet traffic flowing over their networks.

The ruling came in a lawsuit that arose out of Comcast's practice of slowing down customers’ access to BitTorrent. The FCC told Comcast to stop this practice, and Comcast brought a lawsuit challenging the order, as well as broader "net neutrality" rules issued by the FCC in 2008.

The NY Times thinks the decision "could reinvigorate dormant efforts in Congress to pass a federal law specifically governing net neutrality," since Congressmen have expressed concern that the acquisition could give Comcast the power to favor the content of its own cable and broadcast channels over those of competitors.

Computers are People Too

The articles and court cases this week point to a common area of concern for our class: technology does not run itself. Most notably, while the article describing the exploitation of full body scanners in regards to a celebrity is of a light-hearted nature, its implications are grave. After just a single occurrence of misuse, the implementation of full body scanners must be reconsidered.

We so often refer to the "government" and "technology" as if they are autonomous entities acting upon us (humanity). But, it is a fact that the agents of these "entities" are just as human as their subjects. Therefore, technology has as much potential for malicious intent, corruption, and unlawfulness as politicians and pedestrians. The obvious suggestion is that there needs to be more legislation governing how new technologies (like the full body scanners) is to be used. Any infringement on these policies should result in legal penalties and accountability. Ostensibly, going to jail for misusing the scanners would be a better deterrent than the possibility of losing ones job. Technology is, obviously, evolving fast enough on its own, that a little more time spent on assuring that there are product-specific laws in place before the product can be implemented would be a nominal obstacle. As government technology becomes more powerful, and its ability to invade (however lawfully) our privacy escalates, we must be comparably conscious of assuring it cannot be misused. I mean no offense to security checkpoint officers at airports, but there is no expectation for their morality only for their ability to do a job. The celebrity case points exactly to the issue of entrusting such invasive technology into the hands of someone who's trustworthiness has not been properly tested.

I suggest, therefore, that preemptive legislation is not quite enough. And, as much as I suggested the involvement of the legislative branch in the development stage of technology would be nominal; it should be avoided. Instead, the technologies themselves should adhere to a stricter expectation of human-immorality-infallibility. In other words, a new technology (especially one with the potential to violate the Bill of Rights) should not be deemed suitable for use unless it can be shown that all steps have been taken to reduce the necessary amount of human involvement. I am no techie, but it seems reasonable that with maybe a few more years of development the scanners could identify for themselves if there is something suspicious on the person's body and only then would the image produced be made visible to human eyes. This is not the case with baggage x-rays (but I think the case has be made that there is a large difference between body x-ray and baggage x-ray in terms of privacy). If these technologies are going to change the face of border security for decades, there's no reason we cant wait one year, or even one decade, to ensure that our assumption of technology’s autonomy is as accurate as possible.

NSA wiretapping illegal

I saw this story about how a federal judge ruled the NSA's wiretapping-sans-warrant program to be illegal in this morning's New York Times and I thought it was particularly timely given this week's discussion. The court ruled that the government violated FISA in the wiretapping program; apparently the Justice Department had ruled that the court should not be ruling on the merits of the case because it would reveal state secrets -- classic excuse. The suit was brought by Al Haramain, a former charity.

Are We Playing God?

Robin Williams stars in a movie titled, “Final Cut”. In this movie, people have the option to implement a memory chip in their brains that records every moment of their life. When they die, a person called a “cutter” uploads the chip to his computer and arranges the individual’s memories to represent that individual’s life. This “final cut” of the individual’s memories of his life is then played at his funeral. In the movie, there was a political group against this technology. This political group argued it is solely the place of God to know all of the details about an individual’s life. Thus, “cutters” like Robin Williams are playing the role of God as they watch hours and hours of film of an individual’s life from the individual’s memory chip.

I bring up this movie not because I believe memory chips will soon be implemented in our society, but rather to ask if the government will soon play God in the sense that cutters in “Final Cut” play God? Will the government eventually be able to see everything that occurs in our lives? I believe the full body scan is a step too far for the government.

Currently, we’re given the option of participating in the full body scan, but I argue that it will eventually become mandatory. An individual’s body is only for that individual to see and whomever he chooses to allow to see that individual’s body. Personally, I would feel quite uncomfortable having a complete stranger see me naked. True, the image is digital; nonetheless, the process is quite dehumanizing. I argue that a full body scan like the one presented in the YouTube video and the readings is not even necessary. Can’t a pat down suffice? Or, can the government wait to implement this technology until a generic image of the body is shown instead of the individual’s actual body? It cannot be that difficult to create a generic visual for the body, can it? Or, if we continue to use the body scan, could there be a computer program that searches the image rather than an individual? If the computer finds an unidentified object, then a pat down search by security would proceed. I believe either of these options would allow for improved security, while still maintaining one’s privacy.


Continuing with the theme of playing God, I would argue that searching a personal computer at random without reason could give security too much insight to another person’s life. People are continuing to intertwine their lives with technology. Family photos, past purchases, IM conversations, journals, and all sorts of documents are saved on any given person’s computer. When computers are searched, all sorts of embarrassing facts about that person (that are not even relevant to criminal activity) may be revealed to security. Security has no business knowing that much about another individual without reason to search them.

On another note, while I agree with Reese that government should be allowed to detain people for a long period of time at border check points, I also want to argue that the conditions for “reasonable suspicion” must be refined. To simply state that each search depends on an individual circumstance is not enough. This leaves an opportunity for ethnic and racial discrimination to take place at checkpoints. I think this is extremely plausible when evaluating the facts of the Mantoya de Hernandez case. I was shocked by the stark differences in which the majority reported the facts of the case when compared to how Rehnquist (the dissent opinion) presented the case. The majority opinion reported the facts in an apathetic tone and played down the embarrassing events Montoya de Hernandez had to face. The obvious differences in the rhetoric the majority opinion and Rhenquist used to describe Mantoya de Hernandez’s experience in detainment is representative of the great subjectivity used in judging what is a reasonable search and what is not. In this instance, luckily security was not wrong about their assumption that Mantoya de Hernandez’s status as a “balloon swallower”. However, what if they were wrong? That is always a possibility. Moreover, I can’t help but question how many American citizens the border-patrol stops to check for illegal drug ownership. Being that the illegal drug world is so expansive, there have to be Americans smuggling drugs as well. However, I have never heard of Americans being suspected for smuggling drugs and suffering through a situation similar to Montoya de Hernandez’s. This “reasonable suspicion” rule is not efficient at all. It’s completely subjective.