April 2011 Archives

April 27, 2011

Laurie Levenson By Professor Laurie Levenson

Federal judges in the Northern District of California have applied to be part of a pilot project that would allow cameras in federal, civil cases. It is a proposal that is long overdue. The public has a right to see what happens in our courtrooms. It would be far better for the public to see what really happens in a federal court than to believe that our courtrooms operate like the courtrooms they see on television. Federal judges are not "Judge Judy." The issues they deal with are incredibly important, such as the right to same-sex marriage, civil rights cases and class action lawsuits. We have done a great disservice to the public by dragging our heels on cameras in the courtroom and the judges should be applauded for being willing to move into the 21st Century on this issue.

Some judges have been reluctant to allow cameras in the courtroom because they fear that the cameras will change the atmosphere in the courtroom. There is no reason for that to happen. Judges have the power to control the conduct of those appearing before the court. From my experience as a former federal prosecutor, one quick glance by a judge is more than enough to bring lawyers back into line. Moreover, with today's technology, there is no reason that the camera even has to be noticeable in the courtroom. Pinpoint cameras, no larger than the size of a pen, can capture what is happening in the courtroom. These cameras will be no more distracting (and probably less so) than a courtroom artist or reporter sitting in the courtroom.

Finally, we need to recognize this proposal for what it is -- only a baby step toward allowing cameras in the courtroom. The current proposal would only allow cameras in civil cases where the parties and judge agree. Sensational criminal cases are not at issue. We need not worry that cameras will affect a criminal defendants' right to a fair trial. The proposal for cameras in federal criminal cases is not yet on the table.

Perhaps what is most remarkable about the current effort is that it is being spearheaded by the trial judges. The United States Supreme Court, which decides the most momentous cases in our country, still remains closed to the idea. Hopefully, successful efforts in the lower courts will convince the Justices that the time has come for the country to see how our highest court works as well. Whether it is Bush v. Gore or a major terrorism case, the public wants to know how the Court operates. A small television camera can at least give them a glimpse into the process.

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April 25, 2011

Caplan2.jpgBy Associate Professor Aaron Caplan

This is the second in a two-part series originally published in the April 21, 2011 edition of the Los Angeles Daily Journal.

Anonymous sources: One piece of information journalists often wish to keep secret is the identity of their anonymous sources. This is not a new phenomenon. In the early 1970s, Branzburg v. Hayes held that journalists have no constitutional privilege to keep sources confidential from a criminal investigation (although later cases have found a partial privilege in civil cases). Some states reacted to Branzburg with journalist shield statutes, and proposals for a federal counterpart arise in Congress with some regularity.

The current architecture of the Internet is not designed for anonymous communication. For every exchange of data over the Internet, be it via e-mail or by viewing a website, a trail of metadata is automatically logged that includes among other things the IP (Internet Protocol) addresses of the computers involved. In many ways, it is easier to be an anonymous tipster using older media, such as oral communication, an unmarked envelope, or a phone call on a landline. The Internet makes it far easier than before for law enforcement to attribute communications to particular speakers and listeners - including communications between sources and journalists.

WikiLeaks claims to have developed methods for truly anonymous uploading of source documents by leakers. If this is true, it creates a practical means of evading the Branzburg rule - journalists cannot be compelled to reveal identities of sources they don't know. It is open to question how effective this anonymous sourcing is, given the widely reported allegations of prosecutors that Pfc. Bradley Manning was the source of the leaked State Department cables. It appears he was identified in part by the paper trail he left on his work computer, and in part by oral testimony of an acquaintance, and not from evidence from the WikiLeaks dropbox itself. Regardless, the story shows the continuing difficulty of accomplishing truly anonymous speech.

If perfected, an anonymous electronic drop box would have enormous practical implications for journalists hoping to shield their sources. But the technology has no impact on their legal ability to do so. Reporters may still be compelled to testify to their knowledge of sources to a federal grand jury; it's simply that the extent of their knowledge has changed. In the same way, Internet technology should not alter the existing First Amendment rules that provide legal protection to journalists who republish material supplied by anonymous sources, even if the source obtained it unlawfully. That principle was most recently announced in Bartnicki v. Vopper, a case involving not the Internet, but radio broadcasts of recorded cell phone conversations.

Powerful intermediaries: A lone leafleter could in theory communicate with an audience without anyone else's help, but it is literally impossible for a writer to communicate with a reader via Internet without the assistance of intermediaries. These include ISPs (Internet service providers), web-hosting services and other keepers of infrastructure, both public and private, along the way. As a practical matter, this dependence on intermediaries for Internet speech has two major effects. First, it gives the intermediary the power to disrupt communication. This has already happened at least once to WikiLeaks. Due to unilateral action by its domain name server provider, WikiLeaks was temporarily removed from the Internet, and only returned after changing its domain name away from the familiar ".org" designation. Second, investigations of speakers can proceed by questioning the intermediaries, who may well disclose information in their control without the knowledge or consent of the communicating parties.

The Internet gives far more power to intermediaries than some other technologies, but the concept of speech mediated by others is not new to the law. Traditional authors relied on publishers and bricks-and-mortar booksellers to transmit their ideas to readers. Publishers and booksellers could freely choose not to participate. The First Amendment regulates this choice only insofar as it limits the government's power to pressure intermediaries not to distribute officially disfavored works. Some channels of communication - particularly the telephone and telegraph - have been declared by statute to be common carriers that must be open to all communications, but this was a political decision rather than a legal one. The "net neutrality" battle is the latest variation of the ongoing debate over which media should be treated like common carriers.

The question of searches of speech intermediaries has arisen under Fourth Amendment law years before the rise of the Internet, with results that have dismayed privacy advocates. Decisions from the 1970s, most prominently United States v. Miller, held that a person has no reasonable expectation of privacy in information shared with even one non-privileged third party. For example, the government does not require a warrant to gather a suspect's financial deposit records, because after all, the suspect shared that information with those strangers down at the bank. The [Miller] logic has arisen with regard to the requests by the government to obtain information from Twitter about tweets exchanged among the founders of WikiLeaks. A court recently ruled, in effect, that the founders must not have cared about privacy if they shared their metadata with those strangers running the computers at Twitter.

The ubiquity of intermediaries on the Internet brings the shortcomings of the [Miller] principle to the forefront. But once again, the existence of the Internet does not change the underlying legal principle. If Miller is wrong with regard to the Internet, as many believe, it was equally wrong as applied to old-fashioned bank ledgers.


Should we be alarmed, or instead pleased, that the law seems generally oblivious to the hugely consequential fact that a service like WikiLeaks exists on the Internet? Our legal system should of course be alert to the possibility that speech through one medium may be so qualitatively different than another as to require different rules or different frames of reference. I suspect those situations will be rare, and WikiLeaks does not seem to be one of them.

Our most important sources of law - including, of course, our constitutional law - deal with persistent questions of human relations that can transcend media. The First Amendment protects the exchange of information generally, not just information memorialized in familiar ways. The Fourth Amendment protects privacy against overly intrusive government searching, even when that searching takes new forms. Because events can change faster than law can, we are fortunate to have a set of first principles that are sufficiently broad to allow meaningful application in novel circumstances.

This op-ed is adapted from remarks delivered on March 24 as part of the William O. Douglas lecture series at Gonzaga University School of Law.

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April 21, 2011

Caplan2.jpgBy Associate Professor Aaron Caplan

This is the first in a two-part series originally published in the April 20, 2011 edition of the Los Angeles Daily Journal.

The controversy over publication of leaked State Department documents by the WikiLeaks website seems to have "Internet" written all over it. It is treated as a major technology story by publications like Wired magazine and Internet advocacy organizations like the Electronic Frontier Foundation. How could I ask whether it has anything to do with the Internet? The online nature of the WikiLeaks enterprise has immense practical effects, but despite this, any legal action likely to arise from the State Department leaks will be resolved through principles that do not concern themselves with the Internet as a specific medium. By and large this is a good thing.

Unauthorized leaks of government documents, including diplomatic cables, were part of life long before the Internet. Public revelations about the Zimmerman telegram helped propel the United States into World War I. Publication of the Pentagon Papers fueled public debate over the Vietnam War. The statutes governing wrongful disclosure of documents by government employees are decades old, the Espionage Act was passed in 1917, and the constitutional limits on investigation and prosecution of any alleged crimes date back to the Bill of Rights from 1791. With remarkably little adaptation, these preexisting legal concepts will be applied to leaks distributed by Internet.

Let's consider five ways in which the fact that WikiLeaks exists on the Internet has profound practical impact, but remarkably little legal impact.

Wide, cheap distribution: Posting documents on the Internet allows far more people to read it at less marginal cost than ever before. The Pentagon Papers, by contrast, were first revealed in printed articles in the New York Times and Washington Post, summarizing and selectively quoting their contents. These disclosures were reprinted in other newspapers and magazines, discussed in the broadcast news, and the documents themselves were ultimately published as a paperback book. Taken together, these means of distribution cost far more than posting the documents on WikiLeaks, which can potentially reach an audience as large or larger.

As a constitutional matter, the size of a speaker's audience makes little difference. A small town newspaper has the same freedom of the press as the New York Times or Fox News. Freedom of speech and the press also apply to a solo leafleter standing on a street corner, although most speakers desire a larger audience. The First Amendment facilitates their freedom to reach as large an audience as desired to change as many minds as desired. As Justice Abe Fortas wrote in Tinker v. Des Moines Independent School District, we do not limit First Amendment rights to a manageably small zone of expression "that a benevolent government has provided as a safe haven for crackpots."

Access to source document: The Wikileaks site serves primarily as a repository for source documents, and it has relatively little authored content summarizing and analyzing those documents. The huge capacity and relatively low cost of computer storage makes this possible. It would have been prohibitively bulky and expensive to widely distribute hundreds of thousands of State Department documents using earlier media. Public access to source documents adds to the ability of the public to form their own opinions about the events described in them, without relying on the interpretations of gatekeepers. At the same time, the sheer volume of documents available means that most readers will rely on third parties (be they traditional journalists, scholars or bloggers) who have the time or incentive to read and interpret them.

Legally, the choice of publishing a copy of an original document or a summary of it makes no difference. In the Pentagon Papers case, the government unsuccessfully sought to enjoin publication of articles by journalists that summarized and selectively quoted from the documents. After all threat of injunction ended as a result of the U.S. Supreme Court's decision, the documents were later published in the form of a best-selling paperback book that continues to turn up at garage sales decades later. Both forms of dissemination enjoyed equal constitutional protection.

Easy duplication: Computer files on networked systems are made to be copied. Although the WikiLeaks computers store one copy, a viewer surfing the site is actually reading a different copy of the file that has been transferred to her own computer, through a pathway of partial or complete copies housed temporarily or permanently on other computers in the chain of distribution. Once downloaded by an end user, the documents can be duplicated further, perhaps in a mirror site. Even if a government were able to shut down the WikiLeaks web site and jail all of its operators, others can make (and already have made) the information available through other copies. Such fast and easy duplication makes it essentially impossible to keep secrets on the Internet, if a critical mass of decentralized copiers are determined to make them available. This is a truly new practical development.

Yet none of this affects the legality of WikiLeaks posting the documents initially. It was either lawful or unlawful at the outset, even if no further copies were made. As it happens, existing law gives greater legal protection to republication than to initial publication. Under the Espionage Act, for example, it has long been presumed that journalists repeating a secret already publicly revealed by others lack the requisite intent to cause injury to the United States. WikiLeaks' computerized format allows for easier republication by others, but does not alter the legal relationship of publishers and republishers.

This op-ed is adapted from remarks delivered on March 24 as part of the William O. Douglas lecture series at Gonzaga University School of Law.

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April 15, 2011

Jennifer Kowal By Jennifer Kowal

Given our budget problems, nearly everyone agrees that the federal government must ultimately collect more in taxes, whether by raising rates, closing loopholes, or some combination thereof. Tax increases would likely affect all types of earnings -- from salaries to investment income. The 3.8% Medicare surtax on "unearned income" of high income taxpayers (which effectively raises the long-term capital gains tax rate from 15% to nearly 19% on most investment assets) is scheduled to take effect in 2013, and it is a harbinger of things of come.

Does this mean you should reconsider your investment strategies? Almost certainly no. Making major financial decisions based on hypothetical future tax policy changes is risky and would be particularly unwise if done to anticipate changes in the tax treatment of IRAs.

Read the complete article at The Atlantic.

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April 13, 2011

Loyola Law School hosted the fifth-annual Fidler Institute on Criminal Justice on Friday, April 8. This year's institute focused on cyberbullying, managing celebrity clients and trials, cutting-edge investigative techniques and developments in Miranda. The day was capped by a judges' reception and the presentation of the Fidler Awards.

"We were very excited about the amazing speakers and honorees who joined us," said Professor Laurie Levenson, organizer of the event and the David W. Burcham Professor of Ethical Advocacy. "From Lindsay Lohan's lawyer to a retiring California Supreme Court Justice, this year's Fidler program had it all. Attendees were treated to panel discussions on cutting-edge issues in criminal law, including cyberbullying, new developments in Miranda, investigative techniques and managing celebrity clients and trials. Finally, the program was topped off with a luncheon speaker by a death row warden who gave his perspective on the death penalty."

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April 13, 2011

By Paula Pearlman and Shawna Parks

Brown v. Board of Education marked a watershed moment in this country's legal history-- separate is not equal. That moment was equally noteworthy for people with disabilities who have spent the last six decades fighting for full inclusion and equal participation in society and its institutions. Despite longstanding California law, the Rehabilitation Act of 1973, and the passage of the Americans with Disabilities Act in 1990, physical barriers continue to pervade both private businesses and government programs and services. The pervasiveness of these barriers often calls for a comprehensive and thorough response, which is often achieved through a class action.

In both the courts and media, these disability issues are often derided as less important, not worthy of judicial attention, or simply the realm of vexatious litigants. However, in our work, we see physical access barriers directly impact the lives of our clients in very real ways-- preventing a person with a disability from accessing a domestic violence clinic, a classroom, a neighborhood grocery store, or a doctor's office. Even in the U.S. Supreme Court's recent cases involving these issues, it is apparent that real and dramatic barriers persist even in the most critical of government services. Indeed, in Tennessee v. Lane, heard in 2004, the plaintiff who used a wheelchair was forced to crawl up a flight of stairs to appear in court, only to have the court recess. The judge then arrested him when he refused to crawl up a second time.

Fortunately, it is well settled that class certification is appropriate in cases involving systemic challenges to physical access barriers under the ADA and similar disability nondiscrimination laws. Both the ADA and other state and federal disability nondiscrimination statutes require people with disabilities be provided with full and equal access to the benefits afforded to the public by government entities and public accommodations. Many courts, including the 9th U.S. Circuit Court of Appeals, have repeatedly held that actions that challenge failure to remove architectural barriers are suitable for class certification.

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April 7, 2011

Rochelle C. Dreyfuss, Pauline Newman Professor of Law at New York University School of Law, will present "The WTO, WIPO, ACTA, and More: Fragmentation and Integration in the International Intellectual Property Regime" at today's edition of the Faculty Workshop Series.

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April 6, 2011

CenterLawGenocide.jpg

The "Remnants of Genocide: Reclaiming Art and other Heirlooms Lost in Atrocities" conference hosted by Loyola Law School's Center for the Study of Law and Genocide was featured in The Art Newspaper story on a case brought against the Getty Museum by the Armenian Apostolic Church. Read the full story.

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April 1, 2011

Laurie Levenson By Professor Laurie Levenson

Los Angeles Mayor Antonio Villaraigosa's recent agreement with the Fair Political Practices Commission (FPPC) to pay $42,000 to cover the costs of gifts he received, but had not reported, highlights the need for that agency to clarify its regulations. The taxpayers expect the mayor to be a strong presence in this city and even nationally. To do so, he will inevitably be attending events in which he has a "ceremonial role." Technically, if he is performing such a role, the reporting act requirements are not triggered. The big problem is that there is no clear definition as to when an official act is a "ceremonial role."

An infinite number of examples come to mind. How about when the mayor throws out the first pitch at Dodger Stadium or presents a plaque to sponsors of a Lakers game? How about free tickets to Disneyland to attend a conference of potential city investors? How about donning his tuxedo to attend the Academy Awards, which is a critical lifeline for Los Angeles' entertainment industry? Gifts or ceremonial duty?

Some people will want to make political hay over the mayor's recent agreement with the FPPC, but the truth is that his penalty was relatively modest, and even the commission acknowledged that he acted in good faith. In order to guide this mayor and future ones, we need to be more specific as to when the mayor must report "benefits" received by attending such events. No city wants a public official who acts out of self-interest and not the interest of the citizenry. But, nothing about the recent agreement indicates that Mayor Villaraigosa did so. It does indicate, however, that if we want our public officials to follow the laws, we need to make clear what those laws are.

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