January 13, 2006

FISA and the NSA

The NSA surveillance story has been in the news for a while now, and there has been a great deal of commentary in op-eds and on law blogs about whether the actions taken were legal or not. There are actually two questions about the program's legality: was it unconsitutional (i.e. did it violate the Fourth Amendment) and did it violate statute — specifically the Foreign Intelligence Surveillance Act (FISA). (There are secondary questions about Article II powers and the Authorization to Use Military Force passed after September 11th, but those questions aren't reached unless one of the first two is answered in the affirmative).

Now, wanting to understand the issue, I actually read the law and it turns out that a great deal hinges on the definition of "electronic surveillance" in 50 USC 1801(f). Suffice it to say that it's not a simple definition. In fact, it's been likened to Swiss cheese – the idea being that after the Nixon fiasco Congress wanted to be seen as doing something but also wanted to leave enough holes for national security to be protected.

Since understanding the definition of "electronic surveillance" is so central to determining whether the NSA program violated FISA, I decided to parse the definition:

FISA Electronic Surveillance

As you can see, there are lots of scenarios (assuming I've read the law correctly) where FISA does not apply. While I'm not sure we currently know enough about the actually workings of the NSA program to know where it falls out in the chart, as more becomes apparent, hopefully this will be useful.

Posted by richard at 04:05 PM | Comments (2)

July 21, 2004

Carbon Suit

I linked to a study below which called into question the primary cause of global warming. Undeterred, 8 states and the city of New York have decided to sue 5 power companies to force them to curtail emissions of carbon dioxide. Elliot Spitzer is, once again, Leading the Charge in This High Profile Case™. Interestingly, in their suit they are gunning for the utility companies as common law "public nuisances".

Posted by richard at 05:44 PM | Comments (1)

May 12, 2004

Virginia is for Haters

Take a look at this site and consider taking part in the boycott. Andrew Sullivan has more.

Regardless of your position on gay marriage, you should recognize that the Virginia law is reprehensible.

It is not about states' rights or "defending" the social meaning of marriage or deciding how to use public funds – or any of the plausible principled (though perhaps wrong) justifications for denying marriage to homosexuals. It is about denying the freedom of contract to a group because they are despised. It is about singling out a group and saying, you over there, you can't do these things. Even if you want to. Even if you hire the lawyers to write up the contracts. Even if you find a way to come to some accomodation with a world that excludes you. We have, with the stroke of a pen, taken it all away.

It is blatantly unconstitutional, flying in the face of the 14th amendment, and will surely go down at the hands of the courts. But that will just be more ammunition for the people who blast "activist" judges – people who don't realize that the problem is not the judges doing the striking down, but the legislators who pass laws without a second's thought to their constitutionality, legislators who know they can "harmlessly" score points with constituencies by forcing the tough decisions on the court.

It's enough to make me somewhat despondent.

Julia, should we return the J. Crew stuff that you bought me last week?

Posted by richard at 05:11 PM | Comments (5)

April 29, 2004

Regulation by purse strings

Alex Tabarrok at Marginal Revolution points out another example of federal regulation via funding.

A federal judge heard arguments in a suit filed after Metro rejected an ad from Change the Climate, a group that advocates reforms in laws against marijuana. Metro took the action after Congress passed a law that denies federal money to transit systems that accept advertising promoting the legalization of drugs.
It's not the first time Congress has overstepped its bounderies in one area by making funding in another contingent on the behavior it's looking for. Federal highway funds being tied to a 21 year old drinking age comes to mind. But requiring a prior restraint on political speech for transportation funds is another matter entirely.

The optimist in me believes this will be struck down. But the War on Drugs has justified so many other previously unthinkable things that it's hard to be confident.

And as Alex points out, very little of modern life is completely immune to federal funding decisions. If we let this stand, we deserve what we get. Unfortunately, rather than vote the idiots in Congress out for this kind of nonsense, we'll sit back and let the Courts handle it, breathe a sigh of relief, and wait for the next outrage. Sigh....

Posted by richard at 02:49 PM | Comments (1)

April 27, 2004

This has to end

The war on drugs is a miserable failure and we have to rethink it. Anyone who thinks that this is an acceptable, but perhaps regrettable, side effect of our righteous efforts to "save the children" and stop the "scourge of drugs" needs to think again.

Although prosecutors admitted Paey was not a drug trafficker, on April 16 he received a mandatory minimum sentence of 25 years for drug trafficking. That jaw-dropping outcome illustrates two sadly familiar side effects of the war on drugs: the injustice caused by mandatory minimum sentences and the suffering caused by the government's interference with pain treatment.

Paey, a 45-year-old father of three, is disabled as a result of a 1985 car accident, failed back surgery, and multiple sclerosis. Today, as he sits in jail in his wheelchair, a subdermal pump delivers a steady, programmed dose of morphine to his spine.

Meanwhile, prosecutors have pursued Paey in three trials. The first ended in a mistrial; the second resulted in a conviction that the judge threw out because of a procedural error; and the third, which ended last month, produced guilty verdicts on 15 charges of drug trafficking, obtaining a controlled substance by fraud, and possession of a controlled substance.

A juror later told the St. Petersburg Times he did not really think Paey was guilty of trafficking, since the prosecution made it clear from the outset that he didn't sell any pills. The juror said he voted guilty to avoid being the lone holdout. He suggested that other jurors might have voted differently if the foreman had not assured them Paey would get probation.

The prosecutors, who finally obtained the draconian sentence that even they concede Paey does not deserve, say it's his fault for insisting on his innocence. "It's unfortunate that anyone has to go to prison, but he's got no one to blame but Richard Paey," Assistant State Attorney Mike Halkitis told the St. Petersburg Times. "All we wanted to do was get him help."

Instapundit links to more on the sordid history of marijuana prohibition. Read the whole thing for all the xenophobic details.

The most discouraging part? Here is the full text of the congressional debate on the Marihuana Tax Act of 1937:

NY Republican: Mr. Speaker, what is this bill about?

Speaker Rayburn: I don't know. It has something to do with a thing called marihuana. I think it's a narcotic of some kind.

NY Republican: Mr. Speaker, does the American Medical Association support this bill?

Congressman on committee: Their Doctor Wentworth came down here. They support this bill 100 percent.

That's it. The whole thing. And it passed easily without a roll-call vote. The most disgusting thing? What the doctor from the AMA (whose real name was Woodward) actually said to the committee was "The American Medical Association knows of no evidence that marihuana is a dangerous drug." But no matter. That's pretty close to 100 percent support.

And for the first time, federal laws began to regulate narcotics. And now, 67 years later, we get to lock up wheelchair-bound chronic pain sufferers for a quarter century even when we don't want to. Now that's progress.

Posted by richard at 07:07 PM | Comments (1)

ImClone Stock

Prof. Bainbridge points out that ImClone, a lie about which stock will most likely send Martha Stewart to jail later this year, has just closed at $79.75, more than $20 higher than when the "insiders" sold it in a panic.

Posted by richard at 06:50 PM | Comments (0)

April 02, 2004

Hostile Environment

David Bernstein of the Volokh Conspiracy notes a use of "hostile environment" law in a way that was probably not expected – to protect "white, male, Christian students" from feminist teachers.

Bernstein is the author of You Can't Say That and a staunch critic of speech codes and other "let's not offend anyone" laws.

Posted by richard at 09:05 PM | Comments (0)

Too Much Electricity

When your electricity bill and trash dispensing habits constitute probable cause: Elevated Electric Bill Prompts Pot Raid - March 30, 2004

MARCH 30--When California narcotics agents armed with a search warrant recently arrived at the Carlsbad home of the Dagy family (Mom, Dad, three kids), they expected to find one of those indoor marijuana production facilities. You know, the kind where the high-intensity lights stay on all day so the plants grow, grow, grow. As the below search warrant affidavit notes, a check of the Dagys utility records showed "excessive" electrical usage, consumption "very consistent with an indoor marijuana operation." In his affidavit, Detective Mark Reyes also noted the Dagy family's suspicious "trash dispensing pattern" and mentioned that a drug-sniffing dog, one Storm, "showed a positive alert" when he sniffed near the family's garage. Investigators had also planned to conduct some kind of fancy aerial infra-red surveillance, but bad weather grounded those plans. So imagine the surprise when about eight armed narcs raided the Dagy home on March 19 and found absolutely nothing. No evidence of pot anywhere, not even stashed in the children's toys. Seems that the coppers mistook the family's constant use of the dishwasher, washer/dryer, three computers, four ceiling fans, and other electronic devices as evidence of a felony drug operation. Oops. The Dagys--Mom's a homemaker and Dad's a general manager of 21 Shell stations--would like an apology from the Carlsbad Police Department. Sadly, we'd recommend that the Dagys not hold their collective breath. (11 pages)

The text of the search warrant is at the link above. The scary thing is the list of what the officer claimed he needed to search in order to get the "bad guys":

controlled substances, including but not limited to marijuana, kilos of marijuana, baggies of marijuana, marijuana cigarettes, marijuana seeds, derivatives of marijuana, marijuana plants, articles and effects used in the cultivation of marijuana, paraphernalia used for packaging, sales and consumption of marijuana; including but not limited to folded papers, paper bindles, clear plastic and cellophane bags and envelopes, scales, odor masking agents; and fingerprints, handwriting, papers, firearms, written articles pertaining to drugs, narcotics and the use of same, papers, documents and effects which tend to show dominion and control and possession of said premises, including but not limited to keys, canceled mail envelopes, rental agreements, receipts, bills for telephone and utility services, photographs, undeveloped film, video tapes, transaction records for illegal activity, notices from governmental agencies, documents containing names of buyers and sellers of illegal narcotics, United States currency, checks, bank records, stocks, bonds, securities and other proceeds from the illegal sales of narcotics, cellular telephones, paging devices, answering machine recordings and other recordings of telephone conversations; and to intercept all incoming telephone calls while officers are present at said premises....
Oh, is that all? I suppose if their gas bill had been high too, they would have had an invasive search.
Posted by richard at 08:05 PM | Comments (0)

March 29, 2004


Slate has a truly excellent slideshow that is probably a more appropriate version of the plede of allegiance for today's young people.

Thanks to OxBlog for the pointer and the reminder about the Powerpoint Gettysburg address.

Posted by richard at 11:58 PM | Comments (0)

March 18, 2004

ACLU Action

Thought you'd all be interested (given our recent conversations) in the latest ACLU action message that I received:

From: Matt Howes, National Internet Organizer, ACLU
To: ACLU Action Network Members
Date: March 18, 2004

Not satisfied with the new snooping powers granted by the PATRIOT Act,
the Department of Justice is now asking the Federal Communications
Commission to allow law enforcement the power to regulate the design of
Internet communications services to make them easy to wiretap.

If implemented, the new request by Attorney General John Ashcroft would
dramatically increase the government’s surveillance powers and set a
precedent for opening the entire Internet to law enforcement. By
forcing technology companies to build “backdoors” in their systems for
wiretapping, the Ashcroft plan would also create weaknesses that
hackers and thieves could use to invade your privacy and steal personal
information like credit card numbers.

The government already has more than enough power to spy on individuals
suspected of wrongdoing. This measure is the equivalent of requiring
all new homes be built with a peephole for law enforcement agents to
look through.

Take Action! Tell the FCC and Congress that you oppose these new
wiretapping requirements.

Click here for more information and to send a free fax to the FCC
Chairman and your Members of Congress:


Like many of the DOJ's post 9/11 requests, this is obviously opportunistic. Building in insecurity for the rest of us so they can have another tool to catch the bad guys (and notice how it can easily change from terrorists to any ol' bad guys) is plain stupid.

On the other hand, I don't know exactly what, specifically, Ashcroft asked for other than what the ACLU said (although based on history it is probably everything and the kitchen sink), so this may be somewhat overblown.

Posted by richard at 01:13 PM | Comments (0)

February 04, 2004

Public Domain

Many of you know that copyright law and intellectual property rights are an interest of mine. I've got a few excellent books about it on my bookshelf, including Digital Copyright by Jessica Litman and Code and Other Laws of Cyberspace by Lawrence Lessig. I've also posted some of my concerns about the "property metaphor" on Larry Solum's Legal Theory Blog.

So by now, you should know what side of the debate I'm on. The ever-increasing length of copyright terms and the criminalization of "anti-circumvention" devices threaten to simultaneously keep works out of the public domain forever and seal them away where Fair Use can't reach. In fact, as I argued in this post, I'm more concerned with copyright extension (and hence content concentration) than I am about media consolidation — technology will always work to challenge conventional means of distribution, but state-mandated monopolies on content are hard to break.

The balance sought by the Framers has been lost. They were all too familiar with the rent-seeking and influence-peddling that accompanied the state-granted monopolies in England. The "limited times" that were originally 14 years have been turned into life of the author plus 70 years or 90 years for works-for-hire. The balance with the First Amendment is being eaten away by encryption technology (code in Lessig's words) and laws to criminalize tampering. The concept of copying and performing have been expanded far beyond their original meanings, such that in our digital age, use is copying. And the First Sale doctrine which was protected in physical media has been eroded by shrink-wrap licenses and universal commercial codes (like UCITA) being rammed through the states.

Eldred v. Ashcroft was a huge loss and makes another term extension likely when the next wave of Disney properties gets close to expiration. And in the mean time, nothing is entering the public domain — not a single work in the last 5 years. See this graph for some sobering numbers.

So what can be done? Well, everyone who reads this blog should donate to the EFF. It's quick and easy. Also, you should go to their action center and support a bill that's being circulated in Congress right now: the Public Domain Enhancement Act (PDEA). It's a small step, but given the string of losses that have occured when big steps are attempted, it's probably the right move.

The PDEA would require content owners to pay a small registration fee to keep their works protected after an initial 50 year period. The fee would be as small as $1 in order to make sure that small-time authors won't be adversely affected. The fee would have to be paid every ten years until the copyright expires (at today's current terms). While small, the registration fee will have two important effects:

  1. The vast majority of works that are still protected are not commercially viable. Yet they still cannot be used for derivative works because the default is that they are protected. By forcing authors to pony up cash (even a small amount) a huge number of unsuccessful or short-lived titles will join the public domain.

  2. The registration will help people creating derivative works find the copyright holder of works that are still protected. Many works cannot be used simply because it is unclear who currently holds the rights to the work and there currently is no place to go to be sure. The registry would act as a list of rights holders for the use of current artists.

The act currently has 8 sponsors, but needs more. Go to the site. Send an e-mail, a fax, or print out a letter to send to your congress(wo)man — they make it really easy. Do it.

Posted by richard at 04:45 AM | Comments (0)

January 13, 2004

Eminent Domain

The ACLU and the Pacific Legal Foundation are asking a Court to Stop Government Abuse of Eminent Domain. They'd like the court to overturn Poletown Neighborhood Council v. City of Detroit, which allowed the city to condemn a low-income neighborhood in order to sell the land cheaply to General Motors.

The folks at Reason's blog are understandably upset about this kind of expropriation, and the abuses of it that have come about over the last 20 years.

Posted by richard at 12:51 PM | Comments (0)

January 12, 2004

Drug War Censors

Ted Galen Carpenter at the Cato Institute points out how Drug Warriors Try to Censor their Opponents. Just another in a long list of civil liberties that are being quashed by over-zealous prohibitionists — "collateral damage" in the war on drugs.

Here's the scariest part:

The most ominous proposal for repressing pro-drug reform speech comes (not surprisingly) from the United Nations. The UN's International Narcotics Control Board has issued a report implicitly calling on member states to criminalize opposition to the war on drugs. Citing the 1988 UN Convention Against Illicit Trafficking in Narcotic Drugs and Psychotropic Substances, the INCB asserts that all governments are obligated to enact laws that prohibit "inciting" or "inducing" people to use illegal drugs and to punish such violations as criminal offenses.

If such a vague and chilling restriction on freedom of expression were not odious enough, the UN board contends that any portrayal that shows illicit drug use "in a favourable light" constitutes incitement and therefore should be banned as well. Since the report also repeatedly denounces medical marijuana initiatives as well as decriminalization or legalization proposals, even the most sedate advocacy of changing prohibitionist drug laws might run afoul of the censorship regime being pushed by the United Nations.

It is not reassuring that the U.S. government has pledged to cooperate with the UN group's global anti-drug efforts. Although Washington has not explicitly endorsed the censorship recommendations, neither has it stated that the United States rejects such proposals -- even though it certainly could have added that caveat. Indeed, one official pledged "absolute cooperation" with the UN's drug control programs.

Link from Hit & Run.

Posted by richard at 01:28 PM | Comments (2)

January 10, 2004

Terrorism Courts

An interesting argument at the Weekly Standard for a new terrorism court. Thomas Powers argues that neither the normal criminal courts nor military tribunals are the right place to try "enemy combatants" and other terror suspects. He says that, rather than wait for the Supreme Court to force the government to act, the Bush administration should proactively design a system that can protect national security and demonstrate our commitment to due process:

To deal with terrorism cases that could be handled under the ordinary criminal law (as were, for example, the 1993 World Trade Center bombing, the Oklahoma City federal building bombing, and the case of Zacarias Moussaoui), Congress should create a new specialized court. This terrorism court would incorporate special security measures, protect the secrecy of sensitive information and sources, and make provision in its evidentiary rules for the peculiar situations arising from operations on a battlefield or its equivalent. Terror suspects should know the charges against them, have access to attorneys (specially trained, with the proper security clearances), and enjoy a right of appeal. To ensure independence from executive branch influence, federal judges with lifetime appointments should fill the bench. A terrorism court would provide a framework for the emergence of a body of precedent and the development of a cadre of specially trained expert judges and lawyers. There is some precedent for a roughly similar arrangement in the U.S. Foreign Intelligence Surveillance Court, created in 1978 and expanded under the Patriot Act. Experience in European countries (especially France, Germany, and Great Britain) in processing terrorism suspects in civilian courts also provides useful points of reference.

Thanks to Randy Barnett at Volokh.

Posted by richard at 03:54 PM | Comments (0)

January 08, 2004

Self Defense

They have different ideas about it over in the UK. The BBC Radio 4 ran a poll where listeners could select a bill that they would like passed by Parliament. They billed it as a "unique chance to rewrite the law of the land". A member of Parliament, Stephen Pound, promised to present whichever bill was chosen and attempt to get it passed. According to The Independent, neither the BBC nor Mr. Pound were happy with the proposal that won: that homeowners should be allowed "to use any means to defend their home from intruders".

Pound described it as a "ludicrous, brutal, unworkable blood-stained piece of legislation", remarking that "the People have spoken, ... the bastards." He says, unenthusiastically, that he will still offer the bill as promised.

Seems popular opinion has rallied a bit around the right of self defense since Tony Martin was sentence to 5 years in prison for killing a burgler in his home. (From Hit & Run).

Posted by richard at 01:39 PM | Comments (0)

December 06, 2003

This is just so backwards

How did it get this way? And how can we change it?

Stephen Fletcher II tried to grow some psychedelic mushrooms in his Lawrence apartment.

Tremain V. Scott shot and killed a man at close range during an armed confrontation, then, according to an eyewitness, took the victim's gun and shot him with it as he lay on the ground.

An autopsy showed the victim had been shot 18 times.

Both Fletcher and Scott are in their early 20s and have little or no criminal-conviction record, their attorneys say. So who's facing the stiffer sentence?

Fletcher, by double.

Under state drug-sentencing guidelines, he's facing at least 11 1/2 years in prison....

From Mushrooms v. murder: Sentences in Kansas don't all fit the crime, HT to Overlawyered.com.

Posted by richard at 03:44 PM | Comments (1)

November 15, 2003

Loss of Transparency

I was just reading the comments from a post over at Asymmetrical Information about bonuses to non-exempt employees at Ralphs in California. Basically, it seems that a court has decided that Ralphs' bonus plan, which pays low-income workers a bonus based on net income, is illegal under California law because it, in effect, reduces their pay for prohibited expenses. These prohibited expenses include shrinkage expense (i.e. losses from shoplifting), worker's compensation, and cash shortages.

This law obviously exists to make sure that a sales clerk cannot have his or her pay docked because a worker gets hurt or someone steals something from the store, which seems fair — although you can argue whether the state or the market should decide these things. In my mind, it's difficult to see that this should extend to bonuses, but that's not the point of my post.

As one of the commenters to the above post said, instead of having a clear, well-publicized bonus plan that is tied to profitability, the board of directors of Kroger (which owns Ralphs) could simply change to a system where the compensation committee consults on a yearly basis and, taking into consideration the financial health of the business, including profitabilty, arbitrarily determines the bonus amount. It would seem that this would be perfectly legal. But what have we lost here?

It ended up reminding me of the Grutter and Gratz decisions about affirmative action at the University of Michigan. The outcome of those two cases seemed to be that diversity is a compelling state interest (Grutter) but a clear, formulaic system is not allowed (Gratz). Many universities will surely scrap their point systems in favor for arbitrary processes decided by admission boards behind closed doors.

In both cases, the fear is that through good intentions, legislation and litigation we've pushed the actors towards more opaque systems. Is the price paid worth it? Is this even something that can be controlled, or is it an inevitable offshoot of regulation? What are the effects on a democracy (or a market economy) when the incentives are to obscure decision-making processes?

Can anyone think of other examples of this phenomenon?

Posted by richard at 07:53 PM | Comments (2)

September 15, 2003

This is why

I love the blogosphere. An impromptu debate by some really smart guys. You can learn something everyday.

Lawrence Solum has an amazing post on intellectual property (actually on property rights in general). This follows Eugene Volokh's sortie and follow up.

And to think, I played a small part in the first iteration of the debate. Nothing to add this time.... yet.

Posted by richard at 10:57 PM | Comments (0)