Monthly Archives: May 2011

For the ‘I am a Dinosaur’ File

Posted on May 23, 2011 by Michael Froomkin

Tenure in disfavor among college presidents reports MoneyLaw.

Posted in Law School | 1 Comment

The Dirt Starts in the Miami-Dade Mayor Election

Posted on May 19, 2011 by Michael Froomkin

I haven’t blogged about the Miami-Dade Mayor election because it’s mostly depressing. Snap elections don’t, I think, tend to serve the public very well for a host of reasons, and this one fits the mold.

When an unexpected election occurs on a short timetable, only candidates with ready access to funding and/or very substantial name recognition have a realistic shot of election.

When there are no primaries, there tend to be too many candidates for a first-past-the-post election (I’d prefer STV or “instant-runoff” voting). And the sort of debate that might educate voters as to the candidate’s stands, and their mettle, becomes basically impossible. Instead we either get cattle calls in which candidates have too little time to do much more than mouth slogans. The only good news is that it seems certain no candidate will get 50% and then we will get a runoff, at which time we might have some decent candidate events and maybe even debates with followup questions and a greater illusion of substance.

Meanwhile, into this world of hurried and diffuse campaigning comes, of course, advertising. We’ve gotten a handful of mailers, one of them a very unfair attack on Carlos Giminez (see the — much more fair — turn-the-tables parody of the attack ad at Eye on Miami entitled Did Any of You Get This Campaign Flyer in the Mail?).

And the phone rings up to three times a day for robo-calls. Most in a woman’s voice. Sometimes it’s a candidate’s spouse; sometimes it’s just a plummy voice. Until today it’s all been positive campaigning. But today one of the anonymous plummy voices called up and beat up on Hialeah Mayor Julio Rubaina Robaina. Now, it happens that there is a lot to beat up on, as I don’t trust the guy at all (note: do not confuse Mayoral candidate Julio Rubaina Robaina with a totally different ex-Mayor of South Miami also named Julio Robaina who is running for the District 7 seat). [Note to self: Mayoral candidate has a “u”; District 7 candidate has an “o” O’s for everyone: Robaina. Robaina. Robaina ]

I really didn’t like this ad. It equated Hialeah with all things bad, and while that’s practically true of that community’s political leaders, it still seemed presented like an ugly appeal to snobbery — do we want to be like those folks? One particularly sleazy thing about the ad was that when the plummy voice finished beating up on Hialeah, there was a very long pause, maybe ten seconds or more — during which I imagine just about everyone would hang up — before complying with the election law and stating who paid for the ad. And of course it’s some group no one ever heard of, which I think sounded like the “campaign for responsible government” but I may have that wrong.

Because I blogged so intensively about the Coral Gables election recently — more a case of filling a void than a future direction for this blog — a surprising number people have emailed me to ask how I plan to vote in this one. I’ll tell you Real Soon Now™. But despite the fact that I think he got attacked a bit unfairly in this robocall, it won’t be for the Juilo Rubaina Robaina running for Mayor.

Update (5/22): It’s the “Campaign for Honest Government” and there’s a 15 second delay between the end of the talking and the required disclosure. They called again yesterday and today, so I’ve had plenty of chance to time it.

Posted in Miami | 3 Comments

Windows 7 Phones Home Every Time You Change Networks

Posted on May 18, 2011 by Michael Froomkin

Win 7 phones home every time it connects to to a network. Microsoft keeps records of your IP numbers. And it doesn’t poll just once, but repeatedly during a session.

The good news is that, not only can you disable the service, you can even tell it to check your own server instead. If you have a server.

But it does seem like quite a lot of work. And they know your IP address anyway every time you run windows update, so the gain of changing all this is limited.

Incidentally, there is a real legal issue here: Microsoft is collecting a huge pile of data that tells it something, more or less reliable, about where users are and how long they are there. I wonder if this is compatible with data protection law in the EU (which I know considered protecting IP numbers as far back as 2008, but I don’t know if this was actually formalized). I suspect this creates a real legal problem in Switzerland.

Posted in Internet, Law: Privacy | Comments Off on Windows 7 Phones Home Every Time You Change Networks

L’Affaire DSK Summarized

Posted on May 18, 2011 by Michael Froomkin

Despite my trawling the French media, the best short explanation I’ve seen of key aspects of the case is, in all places, a philosopher’s blog. Robert Paul Wolff happens to be visiting Paris, and he offers this great DSK summary.

Key bits:

There are essentially four possibilities. First, things may have gone exactly as the young hotel maid says. Second, the entire thing may have been a complete lie, a frame up, a non-event. Third [this one is attractive to French commentators, who know DSK’s reputation], the maid may have come into the room [either intent upon carrying out a sting or not], and DSK, aware of his reputation and fearful that he was being set up by his political enemies, fled precipitously to avoid being found in a potentially compromising situation. And Fourth, sex may have occurred, presumably at DSK’s instigation, but it was sufficiently “consensual” not to constitute attempted rape or sequestration or any of the other things with which he has been charged [this one is being floated by DSK’s defense lawyers.]

…

So, here is where things stand. If the evidence of the keys shows that DSK checked out before the maid used her key to enter the room, or so soon afterward as not to allow time for anything at all to have happened, then clearly the whole thing is a lie, a sting, a put-up job. If the timeline of the keys makes it possible that the accusations are true, but if the electronic evidence shows that the door stood open for, let us say, half an hour, then the maid’s story of DSK shutting her in shortly after she entered the room is false, and possibilities two or three above are suggested. If all of this electronic evidence is compatible with the truth of the accusations, then the question will be whether there any DNA or other physical evidence supporting the accusations. If there is clear evidence of physical contact [not necessarily semen, but possibly that], then either we have an attack or we have “consensual” sex.

That is where things stand until we have more evidence, but I have to say that on the face of it, the story about a sting is pretty implausible.

And, sadly, this:

Incidentally, in all of the French newspaper coverage, much of which now focuses on the superiority of the French over the American judicial system and on the appalling assault on the dignity of DSK constituted by the pictures of him in handcuffs, I was unable to find a single word of sympathy of any sort for the hotel maid. She is a poor, Black, working-class woman, and as far as the sophisticated left wing journalists, academic commentators, and psychoanalysts are concerned, she does not exist.

Posted in Law: Criminal Law | 1 Comment

Kevin Drum: Unemployment Falls Off the Radar

Posted on May 17, 2011 by Michael Froomkin

Chart of the day — major newspapers barely mention unemployment any more.

In each of our five biggest newspapers, in the entire newspaper, there are now two mentions of unemployment per week. So that’s that. Nobody cares anymore. Politicians don’t talk about unemployment and the press doesn’t report about it. If you’re out of work — and 9% of the country still is — you’re on your own.

Posted in Econ & Money, The Media | Comments Off on Kevin Drum: Unemployment Falls Off the Radar

Wisconsin Court of Appeals Cites My ‘Death of Privacy?’ Paper

Posted on May 17, 2011 by Michael Froomkin

In State v. WALLI, 2011 WL 1775995 (Wis.App., May 11, 2011), the Wisconsin Court of Appeals, 2nd District, cites to my The Death of Privacy? article.

The case was a fairly routine-looking DUI, but the Court of Appeal decided to use it as a vehicle to settle a more general question of law:

Because the first step in this analysis requires us to review the trial court’s findings of historical facts and, in this case, those findings are based in part on a video recording of the event, this court, sua sponte, issued an order converting this appeal from a one-judge appeal to a three-judge appeal and requested the attorney general to file a supplemental brief on the appropriate standard of review. With the near ubiquitousness of squad car video cameras, surveillance cameras and traffic cameras, appellate courts will be deciding more and more cases where some of the evidence is preserved on recordings.

(footnotes omitted). Death of Privacy? got cited for the ubiquitousness point, which is fair enough, although not exactly central to the main issue the court was concerned about.

The standard of review for decisions based on recorded evidence is debatable because a reviewing court ought to be as able to review recordings as is the trial court; the same cannot be (or at least, is not) said about testimonial evidence, since the trial court sees the live witness while the reviewing court sees only the ‘cold’ written record. Traditionally Anglo-American legal systems tend to give a great deal of weight to the seeing of live witnesses by triers of fact, whether or not this in fact enhances accuracy; civil law systems, I gather, do not have the same fetish.

States differ on the appropriate standard of review in such cases, but the Wisconsin Court decided that “clearly erroneous” was indeed the test it would apply when a trial court makes an evidential determination based on a combination of testimony and recorded evidence rather then the far less deferential “de novo” standard urged by the appellant. The perhaps more interesting issue of what standard of review would apply if all the evidence were recorded is not decided in this case, at least not explicitly.

Posted in Law: Criminal Law, Law: Privacy | 2 Comments