Saturday, April 28, 2012

SNOPA - Finally, A Step In The Right Direction


The text of the bill can now be found here. More details/summary are below.

I was going to write a post a while back about why I don't think employers and schools can, constitutionally speaking, require you to give them your facebook (or other social networking or email or whatever) password before they'll hire or promote you. Unfortunately, I was distracted by that pesky work thing. But now, maybe - just maybe - that question could become irrelevant. House Representative Eliot Engel of New York has introduced a bill called the Social Networking Online Protection Act ("SNOPA" - the play on "SOPA" isn't lost on anybody, I hope) that would forbid employers and schools from demanding those passwords. Unfortunately, I can't give you the text of the bill because it's not up on the Library of Congress site, but I'll update as soon as I can. In the meantime, I'll do my best to summarize.

According to Congressman Engel's site, the law would:

  • Prohibit current or potential employers from requiring a username, password or other access to online content.  It does not permit employers to demand such access to discipline, discriminate or deny employment to individuals, nor punish them for refusing to volunteer the information.
  • Apply the same restrictions to colleges and universities, and K-12 schools as well.
So, far so good, I think you'll agree. 

The flip side of the coin, which is not being reported quite as thoroughly, is that the bill would shield employers from liability for failing to monitor password-protected content.  I don't know about you, but my hackles raise a bit whenever I hear (or read) "shield employers from liability." But, in this case, I have to make an exception, for a few reasons. 

First, and most cynically, this provision will probably reduce employer resistance to the bill, because they'll be getting something out of it too. There are quite a few reasons that employers want to monitor your password-protected online stuff - one of which, of course, is that they don't want you to embarrass them. One of the reasons they want to do it, though, is that they can be sued for "negligent hiring" if they hire an employee without checking enough first to make sure he or she isn't a bad guy. Now, if they weren't aware that their employee was a thief/violent dude/alcoholic/whatever because they didn't look at his or her password-protected facebook page, it's not their fault. Similarly, schools wouldn't be liable for stuff that happens on facebook (or any other site) if it's password-protected.  

What I like about this, beyond the obvious, is that it begins to re-draw the line between public and private life that's been increasingly blurred. Yes, it will prevent people from recovering as much in lawsuits against employers and schools (OK, I'm sure some people think that's a good thing, even if I'm not one of them), but it's worth it. This is the kind of legislation that lays the groundwork for preventing schools from expelling kids for stuff they do on their own time, and for preventing employers from asking prying questions they have no right to know. It allows for robust anti-bullying laws like the Arizona law I talked about in an earlier post, which aggressively addresses bullying in school, but specifically draws the line at activities unconnected to school hours and school equipment. It helps make sure that employers can't fire you for what you say on your own time - without your having to invoke the National Labor Relations Act.  

This bill doesn't accomplish all of that, of course. But it's a big step in the right direction.

**Updated information:

1. The bill provides for a fine of up to $10,000 for employers and an injunction by the Department of Labor.
2. The bill has - and this is particularly nice - an anti-retaliation provision. So not only could employers or schools not do this stuff, but they also couldn't punish anyone who complained about it.
3. The definition of "social networking website" is appropriately broad:

      (2) the term `social networking website' means any Internet service, platform, or website that provides a user with a distinct account--
      (A) whereby the user can access such account by way of a distinct user name, password, or other means distinct for that user; and
      (B) that is primarily intended for the user to upload, store, and manage user-generated personal content on the service, platform, or website.
Here's hoping it goes somewhere!

Saturday, April 21, 2012

The Latest Online Privacy (Or Lack Thereof) Bill - CISPA

There hasn't been nearly as much to-do about the Cyber Intelligence Sharing and Protection Act of 2011 (CISPA) as there was about the Stop Online Piracy Act (SOPA, of course), but concern about the bill is growing. I think that's a good thing - I have some serious concerns about it myself - but, as usual, there are a lot of people out there who have some pretty wild (and unsupported) ideas about what it would mean. Since this bill is going to the House for a vote on April 23rd, now is a good time to separate truth from fiction. I can't claim to give you a comprehensive explanation of everything the bill would do - the Center for Democracy and Technology gives a great overview - but here are some highlights.

CISPA would let the government share classified information with private companies, and it would let private companies share information with the government. BUT, it would not force companies to give the government information.

Basically, under this bill, the "intelligence community" would be allowed to share classified "cyber threat intelligence" or "cyber threat information" with "certified" private entities, but only those who have the required security clearance (and it would allow for an expedited process for giving out those clearances). Those private entities could then share "cyber threat intelligence" with the government or any other certified entity, and you couldn't sue them for it, so long as they do it "in good faith" (whatever that means). And, they couldn't be charged with a crime, either.

But, they also couldn't be sued or charged with a crime for not giving the government any of this information, which is interesting. The bill also makes it very clear that the government couldn't require companies to give up information in exchange for receiving classified info. This part of the bill, called the "anti-tasking" provision, would ensure that the government couldn't use companies as de facto government agents, searching warrantlessly to their hearts' content. At least, not officially. It's not much comfort, I admit.

The bill defines "cyber threat intelligence" and "cyber threat information" in ridiculously broad terms.

Predictably, the definitions are as vague as you'd imagine:
      (2) CYBER THREAT INFORMATION- The term `cyber threat information' means information directly pertaining to a vulnerability of, or threat to, a system or network of a government or private entity, including information pertaining to the protection of a system or network from--
      (A) efforts to degrade, disrupt, or destroy such system or network; or
      (B) theft or misappropriation of private or government information, intellectual property, or personally identifiable information.
      (3) CYBER THREAT INTELLIGENCE- The term `cyber threat intelligence' means information in the possession of an element of the intelligence community directly pertaining to a vulnerability of, or threat to, a system or network of a government or private entity, including information pertaining to the protection of a system or network from--
      (A) efforts to degrade, disrupt, or destroy such system or network; or
      (B) theft or misappropriation of private or government information, intellectual property, or personally identifiable information.

As a side note, I find the inclusion of  "intellectual property" in this definition to be ridiculous. What does that have to do with national security, again? Also, this law would preempt any state law on the subject, and it would supersede all other privacy laws (folks at home, that means if a privacy law would otherwise limit this kind of information-sharing, it wouldn't when this law applied).

There are limits on what companies could give the government -  sort of.

According to the bill, private entities couldn't share the information to gain a competitive advantage, and information:

     . . . shall only be shared in accordance with any restrictions placed on the sharing of such information by the [company] authorizing such sharing, including appropriate anonymization or minimization of such information.

I read this to say, the company wouldn't be allowed to violated your user agreement terms. But what I have to ask is, sure, the company weren't supposed to violate your agreement, but if it did anyway, could you sue them for it? Under this bill - and after the way I've seen the Supreme Court treat privacy lately - I have to wonder.

There are very few limits on what the government can do with this information.

The bill says that the government couldn't use this information for a "regulatory purpose" (whatever that means), and it could only use the information if "at least one significant purpose of the use of such information" is a cyber security or national security purpose. We all know what a great limiting principle that is, of course. Also, the government couldn't "affirmatively search" this information for any non-security purpose. I'm not sure how that's supposed to make me feel better.

CISPA would not allow government surveillance of private communications, so it would probably not be a Fourth Amendment violation.

The big concern here is a Fourth Amendment one - that's unreasonable government search and seizure - but this bill wouldn't let the government search anything it couldn't search before. I hate to break it to you, but private companies could always give your information to the government. Now, you just can't sue them for it, and it's definitely not a crime. It's not a new idea: the government can't look in your house without a warrant of probable cause, but they can sure take an anonymous tip about what you've got in there.

But the news isn't all bad...

CISPA is very different from SOPA: It says nothing about shutting down or blocking access to websites whatsoever.

Let's not go too far in freaking out about this. As this US News article points out, this bill doesn't raise the kind of First Amendment problem SOPA would've caused. I think the Electronic Frontier Foundation's claim that "[a]n ISP could even interpret this bill as allowing them to block accounts believed to be infringing, block access to websites like The Pirate Bay believed to carry infringing content, or take other measures provided they claimed it was motivated by cybersecurity concerns" is unfounded. This particular bill is about sharing information, not information restriction, period. 

So, to sum up, yes, this bill creates very serious privacy concerns, especially if companies could get away with violating user agreements (and maybe they couldn't - it's hard to say). But it wouldn't give the government broad, insane enforcement powers like SOPA would've. So go ahead and worry, but, as always, don't panic yet.

Sunday, April 15, 2012

The Controversy Over Cameras in the Courts

The ongoing controversy about whether Supreme Court arguments should be televised has reared its head again.  In February, a bill was introduced that would require the Court to "permit television coverage of all open sessions of the Court unless the Court decides, by a vote of the majority of justices, that allowing such coverage in a particular case would constitute a violation of the due process rights of 1 or more of the parties before the Court."  

The media had a lot to say about this, of course, particularly when the Affordable Care Act arguments were coming up: the Supreme Court absolutely must allow cameras: a need for transparency, the integrity of the Court, the public interest, and democracy itself are at stake in this debate, they said. In March, the Court predictably refused to allow the Affordable Care Act arguments to be televised. 

Somehow, though, I can't bring myself to be outraged.

Supreme Court arguments are already posted in audio format at the end of each week. The Affordable Care Act argument audio was posted two hours after arguments ended, due to public demand.  If that's not fast enough for you, transcripts of arguments are posted on the same day. That will also help you out if you want to know which Justice said what, so you can rabidly speculate about what the opinion is going to say. It takes months for an opinion to come out anyway, so a maximum five-day wait for the audio recording will still leave you with plenty of time to guess what answer the Court's magic 8 ball is going to give us, based on the wild hypothetical questions they pose to the advocates. 

So, what exactly are we missing here? What's being hidden from us? The Justices' facial expressions? Their body language? The commentators above basically say that audio and transcripts "aren't good enough," but other than comparing the arguments to reality TV and describing how entertaining the viewing would be (note: to most people, believe me,it would not), they don't give me much to go on. 

Now, don't get me wrong: I'm not really a fan of most of the arguments for keeping cameras out of the Court either. Slate's Dahlia Lithwick says the "standard argument" for keeping cameras out of the Court is that "mere mortals can't be exposed to all that weighty gravitas and live to tell about it," but that's an obvious straw-man. Personally, I've never heard that argument before, and I don't honestly believe that's anyone's position at all.

In contrast, this Washington Post Article makes a better (and more frequently advanced) argument that unlike Congress, whose every move the electorate can (and perhaps should) be watching, the Court is not a political branch, and cameras in the Court would have a subtle but insidious political influence that we don't want. That might be true, but I think it's pretty hard to say with a straight face that the Court isn't already massively influenced by politics. I feel confident that the Court doesn't split 5-4 in every case that's in the news because their philosophies about reading the Constitution are completely irreconcilable...but only in politically controversial cases. No, I don't think cameras would violate the independence of the Court. 

Nor am I convinced by the argument that TV coverage would allow the media to create catchy clips mischaracterizing the arguments. With the audio out there, the media can already edit and entertain to it's heart's content; I bet plenty of you have heard the clip from the Affordable Care Act arguments about whether or not Congress can require us all to eat broccoli. The point is, cameras aren't going to distort the public's impression of what's going on in the Court any further. 

The main reason to keep cameras out, as far as I can tell, is that they would be disruptive. Anyone who's ever been to a wedding, graduation, or piano recital knows that people running around with cameras can go a long way towards ruining the experience, and those events don't require the kind of concentration that oral arguments do. I've argued in court a few times now myself, and I can say that having the press there would drive me absolutely nuts. However - and this is a big "however" - that isn't, by itself, a good enough reason to keep cameras out of courts. 

So, to sum up, I don't think that the Court will be making a huge mistake if it wants to allow cameras in some day - I  don't think there's any reason to believe it would be anything more than a gigantic annoyance. But, I don't think Congress has any legitimate reason to force the Court to allow cameras either. Public access to what goes on in the Court is vital to our system of government, and if the Court tried to hide what it was doing, that would be an outrage. But that's just not what's happening here. Thanks to the internet, anyone and everyone can find out exactly what's going on within a matter of days or even hours, so I don't think we're missing anything we need to know.

Supreme Court reality TV is just not necessary, and this latest bill is just tilting at windmills.


Monday, April 2, 2012

The Strip Search Case

Well, folks, this blog is supposed to involve me telling you why the law's not as crazy as it seems - unless it is. This is one of those "unless it is" situations. Today, the Supreme Court actually did decide that anyone being detained in the general population of a jail may be strip searched, without reasonable suspicion.

The case is Florence v. Board of Chosen Freeholders of Country Burlington et. al, and it's one of the scariest I've seen in a long time. When I saw this New York Times article about it, I laughed at the headline, "Supreme Court Ruling Allows Strip-Searches For Any Offense."  I assumed this was an alarmist overstatement. Unfortunately, it's really not...probably.

Essentially, it went like this: Justice Kennedy, writing for the majority (along with Scalia, Roberts and Alito, and Thomas - except he dissented from one part), basically explains that cops can't know who might or might not have contraband, lice, diseases, and gang tattoos (really?) before they're put into the general population, and so they'll never be able to separate the dangerous from the non-dangerous. That means they can't be forced to restrict their searches to situations where they have "reasonable suspicion" (which is the usual test for, say, pulling someone over while driving) that the arrestee is hiding something.  The Court, he thinks, can't get too involved with the nuances of how the state runs its jails, or it'll risk tying cops' hands too much. The officers of the law know more than the Court about how this stuff works, so they shouldn't interfere with decisions like this. The opinion also points out that there are a lot of previous cases saying things like this. Here's a characteristic quote:

The officials in charge of the jails in this case urge the Court to reject any complicated constitutional     scheme requiring them to conduct less thorough inspections of some detainees based on their behavior,suspected offense, criminal history, and other factors. They offer significant reasons why the Constitution must not prevent them from conducting the same search on any suspected offender who will be admitted to the general population in their facilities. The restrictions suggested by petitioner would limit the intrusion on the privacy of some detainees but at the risk of increased danger to everyone in the facility, including the less serious offenders themselves.

The dissent, written by Justice Breyer (and unsurprisingly joined by Ginsburg, Kagan, and Sotomayor) sees things very differently (and very much more the way I do, which I'm sure you can tell from my tone here). Effectively, it says, WTF? Have you not heard of the Fourth Amendment, guys? It goes on to describe how invasive strip searches can be (hint: very) and gives statistics from the many amicus briefs about how many strip searches are performed over time - tens of thousands over the course of about five years- versus how many times contraband, etc. is actually found - about two or three. It reminds the majority that prisoners have constitutional rights too, and "reasonable suspicion" is the limitation we've drawn on the authority of the police to search folks. Here's a good quote from this one:

Even when carried out in a respectful manner, and even absent any physical touching . . . such searches are inherently harmful, humiliating, and degrading. And the harm to privacy interests would seem particularly acute where the person searched may well have no expectation of being subject to such a search, say, because she had simply received a traffic ticket for failing to buckle a seatbelt, because he had not previously paid a civil fine, or because she had been arrested for a minor trespass . . . . I have found no convincing reason indicating that, in the absence of reasonable suspicion, involuntary strip searches of those arrested for minor offenses are necessary in order to further the penal interests mentioned. And there are strong reasons to believe they are not justified.

There might be a silver lining though - or at least a sparkly grey lining, anyway. That can be found in the concurrences by Justices Roberts and Alito. For those of you out there who aren't law nerds (but who are, for some reason, still reading), separate opinions aren't (usually) just so that a given Justice can prove he or she is a way better writer than whoever wrote the majority opinion. More often, these opinions explain how the Justice is interpreting the opinion, and often what he or she thinks it doesn't mean. They can give you an idea of how the next case on the issue will go.

In this case, the concurrences written by Alito and Roberts express a lot of concern about the reach of the opinion, indicating that they think the strip-searches-for-everyone rule isn't as broad as you might think. Justice Roberts says,  

. . . it is important for me that the Court does not foreclose the possibility of an exception to the rule it announces . . .[t]hose circumstances include the facts that Florence was detained not for a minor traffic offense but instead pursuant to a warrant for his arrest, and that there was apparently no alternative, if Florence were to be detained, to holding him in the general jail population.

In other words, Roberts thinks the rule makes sense here, because the defendant was arrested for an actual crime, and because he absolutely had to be thrown in the clink with the riff raff. Which means, if someone were just arrested in traffic, it might not be ok to do a strip search. Justice Alito says this even more clearly:

It is important to note, however, that the Court does not hold that it is always reasonable to conduct a full strip search of an arrestee whose detention has not been reviewed by a judicial officer and who could be held in available facilities apart from the general population. Most of those arrested for minor offenses are not dangerous, and most are released from custody prior to or at the time of their initial appearance before a magistrate. In some cases, the charges are dropped. In others, arrestees are released either on their own recognizance or on minimal bail. In the end, few are sentenced to incarceration. For these persons, admission to the general jail population, with the concomitant humiliation of a strip search, may not be reasonable, particularly if an alternative procedure is feasible.

It's this kind of behavior that makes me like Alito more than most other bleeding heart liberals do. I may disagree strongly with the majority opinion here, but I think that this concurrence sets a limit on how much damage the rule can do.

At least it gives me hope that even if the Court refused to draw the line where I think it ought to be drawn, there is a line somewhere.

P.S. Justice Thomas doesn't explain why he dissents from Part IV of the opinion, which declines to create a specific exception for specific situations involving minor offenses, like the ones the concurrences talk about.  He didn't write his own opinion or join a concurrence or even part of the dissent. But no one should be surprised when Thomas decides to remain silent.