Author Archives: Michael Froomkin

Congratulations to Bernie Oxman

Posted on August 20, 2009 by Michael Froomkin

This just in:

University of Miami School of Law professor Bernard H. Oxman has been invited by The Hague Academy of International Law to give the inaugural lecture of the 2010 Public International Law Programme, the academy's principal and best-known program.

He will be the first American to give the inaugural address for the academy's summer programme, which has been held since The Hague Academy was established in 1923.

The amazing thing is that this isn't the most amazing thing about Bernie's career.

In 2003 he served as a judge ad hoc of the International Tribunal for the Law of the Sea, and from 2003-2005 he was a member of an arbitral tribunal in a dispute between Malaysia and Singapore. He has recently been named judge ad hoc of the International Court of Justice in a maritime delimitation case between Romania and Ukraine. He is the only American lawyer ever appointed to serve as judge ad hoc before both of these international tribunals.

Having people like Bernie Oxman here is one of the things that makes UM the place it is.

Posted in U.Miami | 3 Comments

Government Data Breaches

Posted on August 19, 2009 by Michael Froomkin

I've posted a draft of my latest paper, Government Data Breaches to SSRN.

This paper addresses the legal response to data breaches in the US public sector. Private data held by the government is often the result of legally required disclosures or of participation in formally optional licensing or benefit schemes where the government is as a practical matter the only game in town. These coercive or unbargained-for disclosures impute a heightened moral duty on the part of the government to exercise careful stewardship over private data. But the moral duty to safeguard the data and to deal fully and honestly with the consequences of failing to safeguard them is at best only partly reflected in current state and federal statute law and regulations. The paper begins with an illustrative survey of federal data holdings, known breach cases, and the extent to which the government’s moral duty to safeguard our data is currently instantiated in statute law and, increasingly, in regulation.

I then argue that the government’s duty to safeguard private data has a Constitutional foundation, either free-standing or based in Due Process, at least in cases where the government failed to take reasonable precautions to safeguard the data. This right is separate from any informational privacy rights that constrain the government's ability to acquire personal or corporate information. The key is Chief Justice Rhenquist’s opinion in DeShaney.

Under the DeShaney logic, victims of many governmental privacy breaches should have a claim against states under § 1983. Similar constitutional claims against the federal government would require a Bivens action but this is unlikely to work under current doctrine. As a result, persons injured by federal data breaches will have substantially inferior remedies available to them than will victims of state errors. And even when suing a state, however, the provision of effective remedies may be hampered by arguments based on governmental immunity, and the problem of valuing the harms caused by a breach.

It's forthcoming in the Berkeley Technology Law Journal

Posted in Writings | Comments Off on Government Data Breaches

Healthcare Heroes

Posted on August 19, 2009 by Michael Froomkin

Goal ThermometerDemocracyForAmerica.com has a list of “healthcare heroes”: Congresspersons who are standing up for the public option.

There are three members of Florida delegation listed there:

Corrine Brown (FL-03)
Robert Wexler (FL-19)
Alcee Hastings (FL-23)

Notably absent are Kendrick Meek (FL-17), who is running for Senator and you would think might want to get out in front on this but who is running to the right almost as fast as Charlie Crist, and progressive folk like Alan Grayson (Fl-8), Ron Kein (FL-22) and Debbie Wasserman-Schultz (FL-20).

Well, maybe Wasserman-Schultz isn't such a surprise. But Alan Grayson definitely is.

It is a sad thing that contributions often speak louder than polls. If you want to contribute to show these healthcare stalwarts that you appreciate their backbone, click on the thermometer on the right.

Posted in Health Care | 1 Comment

And So We Go Full Circle (Inevitable Dept.)

Posted on August 18, 2009 by Michael Froomkin

Thanks to the Guilds's Do You Wanna Date My Avatar we've gone full circle.

Once upon a time, the cool thing about Machinima was having avatars singing along to songs, or having songs written for them. Avatars playing people moved quickly from dogs on their hind legs to an art form.

Now the wheel has gone full circle and we have a genuine music video in which people play avatars. (And, yes, I'm aware of previous parodies).

Posted in Kultcha, Virtual Worlds | Comments Off on And So We Go Full Circle (Inevitable Dept.)

Old Russian Joke Meets Japanese Reality

Posted on August 18, 2009 by Michael Froomkin

There is an old joke that when the hot line between the white house and the Kremlin was installed, the strategists were very concerned that a mistranslation might set off a world war, so they invested heavily in machine translation projects.

One way in which machine translations get tested is that you take a text in the first language, translate it to the second, then translate it back. If it's recognizable, you're doing well. Well, the story goes that the Army came up with computer program it thought would do the trick, but the folks at the White House demanded a live demo. At the demo they input the phrase “out of sight, out of mind”.

After a round trip via Russian, it came back as “blind drunk”.

I'm reminded of this by Translation Party which will take your English text, translate it to Japanese and back and repeat the process until it achieves what it calls a “equilibrium”. Inputting “out of sight, out of mind” I got “Vision and heart”.

So far, the most steps I can get it to do for a short saying is 11 (“Every llama thinks his load is the heaviest” becomes “All the heavy burden of Rama and his”).

And my weirdest is “Pot calling the kettle black” which quickly became “Runny nose, laughing eyes KUSO”.

(And “measure twice, cut once” went into an endless loop.)

Posted in Internet | 7 Comments

Potentially Interesting Software

Posted on August 17, 2009 by Michael Froomkin

Has anyone here used Mendeley? I'm not entirely clear on the use case: do I upload the papers I've written? Ones I'm reading? Ones I mean to get around to reading?

And how much of what I upload is browseable by others? If I put up all the papers in my bibliography before I publish the paper, is there any risk of finding someone who writes faster writes it since I've acted as their research assistant?

Posted in Software | 7 Comments