Monthly Archives: November 2012

Twitter Hashtag for Ohio State LJ Privacy Conference

#osljprivacy is the hashtag for today’s conference on “The Second Wave of Global Privacy Protection” at Ohio State’s Moritz College of Law.

Posted in Talks & Conferences | Comments Off on Twitter Hashtag for Ohio State LJ Privacy Conference

Off to Ohio

Tomorrow I’ll be making my first-ever trip to Ohio; Friday I’ll be speaking at the Ohio Law Journal‘s symposium on “The Second Wave of Global Privacy Protection.”

The list of speakers is here.

My thesis is more on the order of the lack-of-privacy in the next wave….

Posted in Talks & Conferences | Comments Off on Off to Ohio

Curiouser and Curiouser (the Petraeus Affair) – Updated

I wasn’t going to write about the Petraeus Affair, but wow this is getting weird.

  • “Wealthy socialite”1 Jill Kelly asks the FBI to investigate anonymous threatening emails she’s getting.
  • The FBI agent she first contacts had sent her shirtless photos of himself; news articles use this to suggest he has a crush on her or something.
  • The FBI starts a full-blown investigation, which isn’t the usual reaction to emailed threats. Maybe slightly weird, maybe not given that the emails made reference to the DCIA.
  • The emails turn out to come from Petraeus’s angry mistress, Paula Broadwell, who is also his “biographer” (via the medium of a ghostwriter), and who believed Ms. Kelly of being, or trying to be, an alternate mistress. [Torts, anyone?]
  • The FBI figures out during this investigation that Paula Broadwell was corresponding with Petraeus using gmail drafts and a shared file repository that they could both log into, a tactic people use when they are afraid of leaving an email trail. But the FBI foils that strategy by using geolocation and/or email metadata.
  • Although the FBI says it found four classified documents on Ms. Broadwell’s computer, no one is being charged with leaking them — an extraordinary thing given this Administration’s near-hysterical war on leakers?
  • Meanwhile, the FBI non-boyfriend, who isn’t part of the cybercrimes division decides he’s being shut out of the investigation because there’s some great coverup in progress to protect Obama:

    But the agent, who was not identified, continued to “nose around” about the case, and eventually his superiors “told him to stay the hell away from it, and he was not invited to briefings,” the official said. The Wall Street Journal first reported on Monday night that the agent had been barred from the case.

    Later, the agent became convinced — incorrectly, the official said — that the case had stalled. Because of his “worldview,” as the official put it, he suspected a politically motivated cover-up to protect President Obama. The agent alerted Eric Cantor, the House majority leader, who called the F.B.I. director, Robert S. Mueller III, on Oct. 31 to tell him of the agent’s concerns.

  • Justice/FBI first informs Petraeus’s boss, Director of National Intelligence James Clapper, about their findings — on Election Day. Congress is not informed
  • President Obama was informed for the fist time, at least officially, the next day.
  • Petraeus resigned two days after the election. Congress first hears about it in the public media.
  • Media are in shock. Partly due to a sense of having bought into the “cult of David Petraeus”, partly due to the sense that there’s something funny going on we don’t know yet.
  • Senators and Congresspersons are upset because the FBI kept them in the dark. FBI spins back.
  • Ms. Kelly — seemingly the victim here — lawyers up bigtime.
  • The FBI follows up its earlier search of Broadwell’s computer by carting documents away from her home after a four-hour search — a search seemingly long-delayed.
  • Top U.S. Commander in Afghanistan Is Linked to Petraeus Scandal:

    Mr. Panetta turned the matter over to the Pentagon’s inspector general to conduct an investigation into what a defense official said were 20,000 to 30,000 pages2 of documents, many of them e-mails between General Allen and Ms. Kelley, who is married and has children.

Who knew that government workers had such active exciting lives? And it’s only Tuesday.

Update (still Tuesday!): And there’s a Florida angle:

Twin Florida socialites who are at the centre of the David Petraeus affair gained intimate access to America’s military and political elite through their high-rolling lifestyles even as they quietly racked up millions of dollars in debts and credit card bills.

Jill Kelley, whose complaint over threatening emails prompted the FBI inquiry that has ensnared two top generals, is mired in lawsuits from a string of banks totalling $4 million (£2.5 million), court filings obtained by The Daily Telegraph in Florida show.

Meanwhile Mrs Kelley’s identical twin Natalie Khawam – who obtained testimonies to her good character from both Gen Petraeus and Gen John Allen during her own separate legal battle – declared herself bankrupt earlier this year with liabilities of $3.6 million, filings show.

And, then, this:

The Daily Telegraph has learned. Miss Khawam once dated Charlie Crist, the state’s former governor, a Republican source said, while Pam Bondi, its Attorney General and a close ally of Mitt Romney, attended a function at Mrs Kelley’s home.3

And, allegedly, via Huffpost, Jill Kelley, Woman Who Sparked Petraeus Scandal, Ran Questionable Charity:

By the end of 2007, the charity had gone bankrupt, having conveniently spent exactly the same amount of money, $157,284, as it started with — not a dollar more, according to its 990 financial form. Of that, $43,317 was billed as “Meals and Entertainment,” $38,610 was assigned to “Travel,” another $25,013 was spent on legal fees, and $8,822 went to “Automotive Expenses.”

The Kelleys also listed smaller expenses that appear excessive for a charity operating from a private home, including $12,807 for office expenses and supplies, and $7,854 on utilities and telephones.

  1. Update3: and Honorary Consul…to the Republic of South Korea…but somewhat unclear on the concept, it seems. []
  2. Update2: It’s plausible that this number comes from printing out photos or other encoded attachments, which can run to large numbers of pages for a single .gif or .jpg. Thus there may be many fewer emails than this big number suggests. Of course we can all hope for a movie… []
  3. Update 4 (Wed): Crist’s reaction: “Didn’t happen,” he said. “I may have met her.” []
Posted in Politics: US | 6 Comments

The Corporation at Prayer (and Other Things)

Last week Colorado and Montana passed citizen initiatives stating that corporations are not entitled to constitutional rights as people — a response to the Supreme Court’s Citizens United decision, but also to a longer history of vesting various rights in corporations.

It was thus something of a surprise to encounter today a reference to a new paper by Ronald J. Colombo, The Naked Private Square, which argues that,

Employment law, corporate law, and constitutional law have worked to impede the ability of business enterprises to adopt, pursue, and maintain distinctively religious personae. This is undesirable because religious freedom does not truly and fully exist if religion expression and practice is restricted to the private quarters of one’s home or temple.

Fortunately, a corrective to this situation exists: recognition of the right to free exercise of religion on the part of business corporations. Such a right has been long in the making, and the jurisprudential trajectory of the courts (especially the U.S. Supreme Court), combined with the increased assertion of this right against certain elements of the current regulatory onslaught, suggests that its recognition is imminent.

I have a lot of sympathy for the impulses that animate the corporations-are-not-a-person movement, but I’m a little uncomfortable with absolutist ideas about how to implement it. For example, simply saying that corporations do not have First or Fourth Amendment rights as an entity should not imply that the people working in them check their rights at the door either.

Similarly, the entity has legitimate needs for some rights-like legal guarantees if only to serve the legitimate interests of its owners and employees. Would due process still apply? I hope so. How about the right to counsel? Again, that seems like a necessity, doesn’t it?

I suspect that just removing all current protections would not work at all well; some sort of statutory code of intermediate protections would be necessary to replace the current framework. There’s a lot of work waiting to be done mapping out how wide swaths of law relating to speech, to search, and no doubt many other things, would and should work if we were to treat the corporation-as-entity as outside the protections of the bill of rights.

(Article spotted via Larry Solum.)

Posted in Civil Liberties, Law: Constitutional Law | 8 Comments

The House is the Product of Gerrymandering

A great analysis of the problem by Peter Shane,

Within moments of President Obama’s apparent victory in both popular and electoral votes, Speaker Boehner was claiming that Republicans enjoy their own mandate from the 2012 elections – Republicans kept control of the House. I’m searching in vain for a polite word for this argument.

With unemployment still near 8 per cent and a majority of voters thinking the country is on the wrong track, the Democrats nonetheless not only retained the White House, but increased their majority in the Senate and racked up a string of victories, coast-to-coast, for unmistakably progressive causes and candidates. They won these victories because, in a head to head contest with opposing views, the Democratic or, more generally, the progressive, view proved more appealing.

The reason why the Republicans still have the House is simple: gerrymandering. According to NYU’s Brennan Center for Justice, Republicans used their complete control of 17 state governments after the 2010 elections to pack Democrats into fewer “safe” Democratic districts and create 11 additional “likely” seats for Republicans – that is, seats where the GOP could be expected to routinely receive 55-60% of the vote in a two-party contest.

–Peter Shane, The Two-Mandate Myth: An Ohio View.

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A Second-Term Agenda

Vincent Warren, Executive Director at the Center for Constitutional Rights, has an agenda for President’s Obama’s second term:

Obama’s re-election means we need to hold the president accountable for the change we want to see. Here are the changes we will keep fighting for in Obama’s second term:

  • Close Guantanamo, and end torture through indefinite detention. Repatriate or resettle the men the government does not intend to prosecute, and provide fair trials for the rest
  • End the use of solitary confinement in prisons across the country
  • End unlawful “targeted killings” and the expansion of the Orwellian “disposition matrix.” Acknowledge, investigate and provide reparations for unlawful civilian killings
  • End the war in Afghanistan and pull all private military contractors out of Iraq and Afghanistan
  • Abandon the endless global war paradigm as the basis for abusive national security policies and end the use of war force outside of war zones
  • Investigate and prosecute former high-level U.S. officials who bear responsibility for torture and war crimes committed in Afghanistan, Iraq and the “black sites”
  • Provide medical treatment and compensation to people subjected to torture in U.S.-run detention facilities, including in Iraq and Afghanistan as well as Guantánamo, and provide war reparations to communities in Iraq and Afghanistan for harms done to the people and the environment
  • End the persecution of whistleblowers and journalists like Julian Assange, Wikileaks and Bradley Manning for protected First Amendment activity
  • Increase transparency, sunshine and freedom of information in federal law enforcement and prisons and end overclassification of unlawful or embarrassing government conduct
  • Stop the criminalization of dissent: end the stifling of activist expression under the anti-free-speech National Defense Authorization Act and the Animal Enterprise Terrorism Act and end overbroad prosecutions for terrorism under material support laws
  • Stop the criminalization and profiling of communities based on race and religion: end the devastating Secure Communities program that destroys families and spreads fear in immigrant neighborhoods
  • End warrantless surveillance and stop the indiscriminate targeting and surveillance of Muslim, Middle Eastern, and South Asian communities under the guise of national security
  • Support human rights internationally: stop funding and training police and militaries abroad implicated in human rights abuses in places like Honduras
  • Center women’s equality in all policy and legislative initiatives concerning their bodily autonomy and right to health

Off the top of my head, I don’t think Obama is for any of these, is he?

I myself am not on board for some items on this list either. For example, I think it is entirely legal to prosecute Bradley Manning, as I don’t think he was engaged in a protected First Amendment activity; whether one believes he did a public service relates to moral culpability and hero/villain status, but not legal guilt. I don’t feel well informed about the Animal Enterprise Terrorism Act, but it certainly hasn’t reached my radar as s civil liberties issue. There’s probably more. Even so, I respect the ambition and energy that motivates this list; what I’m wondering is which if any of these items will be able to get traction?

Posted in Civil Liberties, Torture | Comments Off on A Second-Term Agenda