April 1, 2011

Finding Liability in the Fukushima Disaster

Who should bear responsbility for the nuclear disaster in Fukushima prefecture? Nuclear liabilty law in many states often assigns liability to the operator alone. In an op-ed in the L.A. Times, I note that there were similar claims of limited liability based on law in the Gulf Oil Spill. Both BP and Transocean were thought to have limited exposure. But BP still agreed to a $20 billion fund to help those harmed by the spill.  

March 22, 2011

California Bans Impersonating Another Person Online

California has understandably taken a lead in protecting individuals online, for example, in its privacy breach notification law. Now it targets a common tactic for harassing individuals in today's Internet era--impersonating someone.

SB 1411 creates a new section of the California Penal Code, which bars the online impersonation of another person for the purpose of harming someone.

528.5 (a) any person who knowingly and without consent credibly impersonates another actual person through or on an Internet Web site or by other electronic means for purposes of harming, intimidating, threatening, or defrauding another person is guilty of a public offense punishable pursuant to subdivision (d).


(c) For purposes of this section, "electronic means" shall include opening an e-mail account or an account or profile on a social networking Internet Web site in another person's name.

(d) A violation of subdivision (a) is punishable by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.

(e) In addition to any other civil remedy available, a person who suffers damage or loss by reason of a violation of subdivision (a) may bring a civil action against the violator for compensatory damages and injunctive relief or other equitable relief pursuant to paragraphs (1), (2), (4), and (5) of subdivision (e) and subdivision (g) of Section 502.

(f) This section shall not preclude prosecution under any other law.

December 17, 2010

The Dark Side of the Internet: Privacy, Defamation, and Free Speech

Harvard University Press just sent me a copy of the new book, The Offensive Internet, edited by University of Chicago law professors Saul Levmore and Martha Nussbaum (each of whom also contributes a chapter in the book). 

The book is an important antidote to the often Panglossian approach of early cyberspace enthusiasts.

I contributed a chapter titled "Youthful Indiscretion in the Internet Age." It's a collection of thoughtful papers. While you are likely to disagree with many of them (as I do), the papers each make significant contributions to the literature.

October 11, 2010

Pam Samuelson to Give Law in the Information Age lecture on Thursday

September 27, 2010

Prof. Aoki's new copyright comic book featured in SF Chronicle

Professor Aoki drew the stunning new comic book written by Duke's Jamie Boyle and Jennifer Jenkins. Professor Aoki's art is brilliant and hilarious, and the comic book is featured in the SF Chronicle's Sunday magazine, Insight.

[click to enlarge]

September 21, 2010

Internet at Liberty conference in Budapest

I am currently in Budapest attending the Internet at Liberty conference sponsored by Google and hosted by the Central European University.  The conference brings together many of the world's leading activists working on Internet censorship and surveillance issues. It is being streamed live by Google here.

Google's David Drummond kicked off the event, ending his remarks by the story of an activist who had been invited to join us in Budapest, but could not. The activist explained (presumably via email) that he had sought permission to travel, but found a Kafkaesque bureaucratic response that treated words such as "Internet" and "liberty" and even "University" to be inherently problematic.  I hope the activist has found a way to stream the video, and participate virtually.

August 11, 2010

ACRONYM Act (A Crazy Really On-point Nice Yearning Message Act)

President Obama signed into law this week the “SPEECH Act.” That is the short form title for the ‘‘Securing the Protection of our Enduring and Established Constitutional Heritage Act.”

The Act itself garnered unanimous approval in both the House and the Senate--which I presume to be relatively rare. The Act has obvious merit because it prevents the enforcement of a foreign defamation award if the defamation claim would not have passed First Amendment scrutiny were it to be adjudicated here. 

One bit of the act that might be slightly controversial is its extension of the CDA section 230 immunity to protect against foreign attempts to enforce defamation actions against Internet service providers. Section 230 has drawn criticism even in the United States for its preferential treatment of Internet publishers.

But I want to comment on a much lighter aspect of the statute.

The “Speech Act” is much nicer than an awkward set of consonants and vowels that might be generated without any concern for the acronym, even if the double-e in “speech” necessitates the mild infelicity of the slightly repetitive formulation “Enduring and Established.” (Maybe “Enduring and Enlightened” might have been preferable, though some might suggest that that would cast aspersions on other states without our free speech heritage, including our closest allies.)

In recent years, we have seen the “PATRIOT Act” and “E-Sign,” both acronym statutes. I'm sure there are legions of others, though to my ears this seems like a relatively recent development.

Do you have any statute that you would like to see enacted not principally because of its merit because of the nice acronym it would generate? I'd love to hear your suggestions in the comments.

July 7, 2010

Time Magazine Finds Humor in "Dot Head"; Forgets Navroze Mody

The most read and the most emailed piece on the Time Magazine site right now is Joel Stein's "My Own Private India." In it Stein says that the increasing presence of Indian-Americans in his hometown of Edison, New Jersey "bothers[] me so much."

Faced with a flurry of criticism, Time Magazine has now posted the following non-apology apology:

TIME responds: We sincerely regret that any of our readers were upset by Joel Stein’s recent humor column “My Own Private India.” It was in no way intended to cause offense.

The apology does not in fact concede that there is reason for offense. That was not the "intent[]" of this "humor" piece.

Perhaps the most serious error in the piece is that it is an ostensible humor piece lacking any humor. What is most galling, however, is that this ostensibly serious news magazine fails to have any sense of history.

Stein writes:

My town is totally unfamiliar to me. The Pizza Hut where my busboy friends stole pies for our drunken parties is now an Indian sweets shop with a completely inappropriate roof. The A&P I shoplifted from is now an Indian grocery. The multiplex where we snuck into R-rated movies now shows only Bollywood films and serves samosas. The Italian restaurant that my friends stole cash from as waiters is now Moghul, one of the most famous Indian restaurants in the country. There is an entire generation of white children in Edison who have nowhere to learn crime.

Perhaps if magazines like Time had spent more time on better reporting, the editors would have recognized the obvious logical and historical error in this "funny" paragraph. The "white children" in Edison inclined towards crime could now practice their craft on Indian Americans.  Indeed, this was the case in the 1980s suburban New Jersey, the passing of which Stein laments.

Back then, folks like Stein's friends not only harassed Indian Americans as "dot heads," they also physically attacked them.  As the Harvard Pluralism project reminds us:

in 1987, a thirty-year-old Indian immigrant bank manager, Navroze Mody, was beaten to death by a gang chanting "Hindu, Hindu!" A group which called itself the "Dot Busters," which included local teenagers, had been targeting the hard-working community of Indian immigrants with low-level harassment for months. The "dot" referred to the bindi Hindu women wear on their foreheads.
In July of 1987, a month before Mody's death, a local newspaper called attention to the rising number of harassment incidents. In response, it received a letter, signed "Jersey City Dot Busters:"
"I'm writing about your article during July about the abuse of Indian People. Well I'm here to state the other side. I hate them, if you had to live near them you would also. We are an organization called dot busters. We have been around for 2 years. We will go to any extreme to get Indians to move out of Jersey City. If I'm walking down the street and I see a Hindu and the setting is right, I will hit him or her. We plan some of our most extreme attacks such as breaking windows, breaking car windows, and crashing family parties. We use the phone books and look up the name Patel. Have you seen how many of them there are? Do you even live in Jersey City? Do you walk down Central avenue and experience what its like to be near them: we have and we just don't want it anymore. You said that they will have to start protecting themselves because the police cannot always be there. They will never do anything. They are a week race Physically and mentally. We are going to continue our way. We will never be stopped."
In Jersey City, a few weeks after Mody's death, a young resident in medicine, Dr. Sharan, was assaulted by three young men with baseball bats as he walked home late one night. One of the young people yelled, "There's a dothead! Let's get him!" as they set out with their bats. Sharan was beaten severely and left unconscious with a fractured skull. He was in a coma for a week, in the hospital for three weeks, and suffered permanent neurological damage.

A search on Time's website of its content in the 1980s and 1990s reveals no mention of the "Dot Busters" or of Navroze Mody—though perhaps the archive is not as comprehensive as it appears (or, more likely, the search engine is not particularly good). A group of thugs terrorized a particular group in the country on account of its race or national origin or religion—even going so far as to kill someone—and the country's major newsmagazine seems to have failed to find it worthy of significant attention.  As a child growing up in a far more gentle environment in 1980s Ohio, I learned of the terror of the "Dot Busters" from Indian-American media.

A review of the last ten columnists published by Time Magazine reveals that 100% of them are white, and only 10% are female. Newsweek can boast the powerful writing of Fareed Zakaria (who was conservative enough to support the invasion of Iraq). Perhaps Time should apologize to the Indian-American community by replacing Stein with an Indian-American columnist. Kal Penn, who has the added virtue of actually being funny, would be ideal (see his punchy putdown of Stein's column).

Cross-posted at Colored Demos.

June 24, 2010

Viacom v. YouTube, Round One

YouTube logo

Viacom sued YouTube for hosting material that Viacom claims infringes Viacom’s copyright. Yesterday, the federal District Court for the Southern District of New York handed down a summary judgment siding with YouTube.

District Judge Louis Stanton’s decision is a model of judicial clarity. It quickly identifies the principal issue in the case and focuses the bulk of the opinion on that issue. As Judge Stanton sees it, the issue is whether YouTube qualifies for the Digital Millennium Copyright Act (DMCA) safe harbor even if it does not itself search out and destroy copyright infringing material without a specific request from a copyright holder identifying the infringing material. The burden, Judge Stanton argues, falls on the copyright holder and not YouTube.  It is clear that there is a substantial amount of infringing material on YouTube, but YouTube does not have the responsibility to remove it without a clearer “red flag”—such as a moniker that it is “pirated” material.  (Not to cavil, but even The Pirate Bay hosts material that is not copyright infringing.)

Judge Stanton’s decision seems a clear and logical interpretation of the DMCA. He spends a great deal of time focusing on the legislative history of the statute as reflected in the legislative reports before Congress.

He does not dwell on some of the sideshow that developed during the discovery, including an email during YouTube's early period in which founder Steve Chen acknowledges that a substantial amount of the material on the site is infringing. That email demonstrated knowledge of infringement, but not the particularized knowledge that the DMCA requires. Otherwise, every web hosting service would be at risk--because copyright infringement is so widespread in cyberspace.

It is too early for YouTube (and us netizens, more generally) to declare victory. The decision is likely but Round One.  Viacom has the resources to continue the challenge on appeal. It might choose not to do so (1) if it believed it too expensive to do so; (2) if it believed that an appeal would risk creating “bad law” from its perspective; (3) if it believed that further publicity for its claim against a beloved website would antagonize its consumers; or (4) the litigation sapped too much executive time and energy.

Assuming an appeal is filed, the Second Circuit Court of Appeals will review the decision below, based as it is purely on an interpretation of law, de novo. That means that Judge Stanton’s decision will receive absolutely no deference. The Second Circuit will review the issue entirely anew.

It is too early to pronounce victory, but Judge Stanton’s decision marks a helpful first step.

Cross-posted on Chander.com.

June 20, 2010

The Executioner’s Conscience

Draper facility, Utah State Prison.
by David Jolley

“The five law enforcers remain anonymous, and will be stationed behind a gun ported brick wall in the execution chamber. The executioners will be armed with .30-caliber rifles, four of which will be loaded with live rounds. The weapon carrying the blank round will be unknown to the law enforcers.”
Execution Procedures, Utah Dept. of Corrections

Ronnie Lee Gardner committed heinous acts condemned by all civilized people. Given a choice of methods of his own execution, he elected to face death by firing squad.

The procedures instituted by the state suggest more ambivalence about this procedure than one might have expected. The five peace officers called upon to perform this civic duty are to remain anonymous. One can understand that, given possible future shifts in public opinion about the death penalty, it might make sense to hold the executioner anonymous. (This differs sharply, of course, from systems that hold judges anonymous.)

The more intriguing decision is the fact that information is withheld from the executioners themselves. None of the five officers knows if he or she is the one who helped cause the death or if his or her rifle carried a blank.

None of the five law enforcers knows if he or she is indeed an executioner. Why does the State of Utah deny this information from these officers?