Monthly Archives: April 2016
I was one of the guests on Denise Howell’s and Mike Keyes’s This Week in Law — a two hour podcast on this week’s developments in technolaw and IP law. The other guest was David Levine, who fortunately knows a lot more about trade secrets than I do, as it was a busy week for those.
Anyway if you have a very long exercise session, the podcast awaits. And in some states you can get CLE for listening!
Going to see the Iggy Pop concert tonight.
I’m old enough to remember when “Iggy” for music meant Pop and not Azalea. In fact I’m old enough to remember when it seemed like New York Times style, which required that everyone be Mr. or Mrs. or Miss, might require a review of Iggy Pop to speak of “Mr. Pop”. (The story is that the ban on removing honorifics broke when it came time to review an album or concert by Meat Loaf. Meanwhile the rule that honorifics must be removed for convicted felons got changed just in time to save the paper from lèse-majesté with Spiro Agnew.)
Anyway, now that Bowie is gone, Iggy Pop may be the last of his kind. So if he’s going to come here as part of his “Post Punk Depression” tour, I’m going to go there, even if it is the last week of a very busy semester. See you in row “U”.
My brother is being resasonable about what he calls “The Brooklyn Dodgers,” namely Hillary Clinton’s and Bernie Sanders’s non-answers at the most recent debate.
WHEN A CANDIDATE for high office can’t respond to a simple question with an honest answer, attention should be paid. More often than not these days, that kind of behavior is just greeted with a shrug by the members of the elite media, but specific acts of evasion are worth studying. Because if something’s important enough for a candidate that they concoct a ludicrous non-response, there’s probably a sore point under there somewhere.
And when a candidate won’t directly answer the question, it’s also legitimate to speculate why that might be.
I’m not talking here about the positions on the issues that the candidates are taking, and whether they are logically consistent or wise. I’m not fact-checking. I’m just looking at evasive responses, and what they mean.
There follows multiple examples. I think this a model of what news analysis during campaigns should be.
PS. That said, reasonable surmise #2 appears to have been disproved by events? Could the reason Bernie hadn’t released his returns have been as simple as the returns being back home, the family is on the campaign trail, no one else had the key?
Tangled issue in First Amendment law: when is a professed ‘faith’ protected, and when is it not? Faith is unknowable after all. Religions cannot be tested for truth by outsiders. Now comes Judge John Gerrard of the District of Nebraska, holding that an inmate’s claim he’s being denied equal treatment for his religion based on the Flying Spaghetti Monster (FSM) is half-baked:
This is not a question of theology: it is a matter of basic reading comprehension. The FSM Gospel is plainly a work of satire, meant to entertain while making a pointed political statement. To read it as religious doctrine would be little different from grounding a “religious exercise” on any other work of fiction. A prisoner could just as easily read the works of Vonnegut or Heinlein and claim it as his holy book, and demand accommodation of Bokononism or the Church of All Worlds. 6 See, Kurt Vonnegut, Cat’s Cradle (Dell Publishing 1988) (1963); Robert A. Heinlein, Stranger in a Strange Land (Putnam Publ’g Grp. 1961). Of course, there are those who contend—and Cavanaugh is probably among them—that the Bible or the Koran are just as fictional as those books. It is not always an easy line to draw. But there must be a line beyond which a practice is not “religious” simply because a plaintiff labels it as such. The Court concludes that FSMism is on the far side of that line.
Spotted via ars Technica
Microsoft filed suit today seeking a judicial declaration that 18 U.S.C. § 2705(b) violates its First Amendment Rights, and the Fourth Amendment rights of the subjects of the orders.
I think this lawsuit is a Big Deal, and Microsoft has the right of it on moral grounds. On legal grounds it has a good arguable case, although the law is not so clear that I can call it a slam dunk. This excellent article by Steve Lohr in the NYT gives the outline, and quotes a soi-disant expert.
Perhaps the most interesting, if disturbing, fact is this one:
From September 2014 to March 2016, Microsoft received 5,624 federal demands in the United States for customer information or data. Nearly half — 2,576 — were accompanied by secrecy orders.
And of those secrecy orders, more than two-thirds contained no fixed end date. I.e. unless Microsoft were to go to court later to challenge them in individual proceedings, they orders would on their own terms last forever.
The text of Microsoft’s complaint is worth reading as it is very well done. Here’s the first paragraph:
Microsoft brings this case because its customers have a right to know when the government obtains a warrant to read their emails, and because Microsoft has a right to tell them. Yet the Electronic Communications Privacy Act (“ECPA”) allows courts to order Microsoft to keep its customers in the dark when the government seeks their email content or other private information, based solely on a “reason to believe” that disclosure might hinder an investigation. Nothing in the statute requires that the “reason to believe” be grounded in the facts of the particular investigation, and the statute contains no limit on the length of time such secrecy orders may be kept in place. 18 U.S.C. § 2705(b). Consequently, as Microsoft’s customers increasingly store their most private and sensitive information in the cloud, the government increasingly seeks (and obtains) secrecy orders under Section 2705(b). This statute violates both the Fourth Amendment, which affords people and businesses the right to know if the government searches or seizes their property, and the First Amendment, which enshrines Microsoft’s rights to talk to its customers and to discuss how the government conducts its investigations—subject only to restraints narrowly tailored to serve compelling government interests. People do not give up their rights when they move their private information from physical storage to the cloud. Microsoft therefore asks the Court to declare that Section 2705(b) is unconstitutional on its face.
Update: For an argument that courts will deny Microsoft’s facial challenge on the grounds that the claims can only be asserted ‘as applied’ — very much an emphasis of recent Supreme Court decisions disfavoring as facial challenges to statutes, see Jennifer Daskal at Just Security, A New Lawsuit from Microsoft: No More Gag Orders!. It’s more pessimistic than I would be, but not implausible.
Update2: Microsoft’s statement.