The Right Most Valued

As you prepare to head off on vacation, you run through the list you have diligently prepared to make sure you haven’t forgotten anything.  Clothes for all kinds of weather, something nice to wear when you find a good restaurant, toiletries, and so on.  You check that the water is turned off, that you have left detailed notes for the petsitter, that your mobile phone is charged.  And, these days, you check for compliance with security restrictions:  that you haven’t accidentally put your eyedrops in your carryon bag, that all your liquids are in tiny bottles, that they are neatly packed in a quart-sized bag. 

At the airport, things do not go quite as well as you expect.  You’re standing in the security line, watching your shoes, your jacket, your sweater, your jewellery going through the x-ray scanner as men acting under the authority of the government scan you with detectors, examine your identification, look for telltale signs of nervousness.  Perhaps they even profile you based on the clothing you wear, the shade of your skin, and your age, even though they never admit it. 

One of them comes over to you as you move to retrieve your things from the plastic bins.  He asks you, “Are these your items?”  You’re uncertain why he’s asking but you acknowledge that they are.  “Do you have anything in your bag that you’re not supposed to,” he asks.  You say you don’t, but why is he asking?  He holds up a vial containing white powder.  “Did this come out of your bag?”  You can feel your palms turn sweaty and a lump forms in your throat.  Your voice cracks a bit when you say no, making you worry that it’s all going to make him more suspicious.  His face is serious, accusing.  “Are you sure?” 

It is only after he has frightened you that he confesses it’s just a joke. 

Too funny. 

What I have described is not fantasy.  In January of this year, an employee of the Transportation Security Administration engaged in this prank multiple times with passengers he knew were innocent.  My objective in highlighting the story is not to blow it out of proportion — people do engage in pranks, some of which are inappropriate, and they properly acknowledge that their judgment was poor when they consider things more soberly.  Instead, my objective is to remind us that the employees charged with implementing security at airports are human and the risk that they will act maliciously is not simply hypothetical. 

This is of real concern as the government continues to deploy full-body scanners at airports as part of its security procedures.  The scanners are technological marvels and it’s hard not to remember Arnold Schwarzenegger being scanned by something eerily similar in the movie Total Recall.  Innocent people simply wanting to travel from one location to another — and without the government having any specific reason to suspect them of wrongdoing — are now expected to allow themselves to be scanned in a way that generates images of their naked bodies through their clothes.  Reassurances that privacy protections are in place — by having the viewing officer remote from the scanner, by including imaging techniques that blur facial features, and by implementing a policy requiring deletion of the images — do not really strike at the heart of the privacy concerns.  Even with these protections in place, extremely personal details of people’s bodies are displayed to government agents: colostomy appliances, penile implants, evidence of mastectomy or testectomy, and more. 

Already it is known that many images have been saved, contrary to the policy.  At least one federal security screener in Miami has already been arrested in a conflict that arose when a coworker mocked images of his naked body generated by one of the scanners.  That story can be read here.  A security worker at Heathrow airport was subject to discipline when he made lewd comments about a coworker who was accidentally imaged by a scanner.  That story can be read here.  

The deployment of full-body scanners has been challenged in litigation that raises a number of arguments in asserting that they are unlawful.  First, the lawsuit alleges that the scanners violate the Fourth Amendment’s guarantee that people have the right “to be secure in their persons … against unreasonable searches and seizures.”  It is well-settled that airport security by itself is not an “unreasonable” search that violates the Fourth Amendment.  But there is a significant difference between having passengers walk through magnetometers to detect metal before subjecting them to a more thorough search and requiring that every passenger have their unclothed body imaged.  To be constitutional, airport searches must be “minimally intrusive,” “well tailored to protect personal privacy,” and “neither more extensive nor more intensive than necessary under the circumstances to rule out the presence of weapons or explosives.”  Do full-body scanners meet these criteria? 

Perhaps most interesting about the lawsuit, though, is its allegation that the program violates the Religious Freedom Restoration Act.  This act prohibits the government from burdening the exercise of a person’s religion, even from generally applicable rules.  Many religions make physical modesty a part of their doctrine and rules that force all aircraft travelers to violate their beliefs regarding modesty may well violate the statute. 

Airport security has a legitimate role and almost no one maintains that full-body scanners do not have a reasonable place in that security.  What is objectionable is the uniform use of such a personally intrusive scanning technology on people who have raised no suspicion that they have any intention other than wanting to board a plane so they can travel from one place to another.  Programs that make use of the scanners only when some suspicion exists — after detection of metal by a magnetometer, suspicious behavior, unusual ticket-purchasing patterns, and so on — would generate far less objection among travelers. 

Benjamin Franklin has been quoted so frequently since the grim events of September 11, 2001 that to quote him again seems almost trite.  But there is nevertheless truth in his warning, which rings especially cleanly in the way it reminds us that the issues we face today are really no different in kind from those faced by contemporaries of the framers of the Constitution:  “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.”  If our own bodies do not define an essential liberty … then what does?

The $62,500 Question

Hammurabi was a ruler of ancient Babylon who perhaps had many achievements, but the one that we remember most is his code of laws.  A black stone monument on which the Code of Hammurabi was inscribed was found in the Persian mountains in 1901 and is currently housed at the Louvre in Paris.  At the time, the concept of the Code was revolutionary:  proclaim publicly what the laws are ahead of time, and publish them so that everyone might see them and know what behavior is expected. 

The Code of Hammurabi is also famous for embracing the principle of lex talonis, setting the punishment for putting out the eye of an equal to be having ones own eye put out and setting the punishment for knocking out the teeth of another man to be having ones own teeth knocked out.  The principle of an “eye for an eye and a tooth for a tooth” later found its way in some form into almost every judicial text, including such religious texts as the Old Testament book of Exodus and the Quran as well as in secular legal systems in such civilizations as Rome.  The concept still exists today in that punishments are generally expected to “fit the crime.” 

So how do we explain last week’s verdict assessing damages against Jammie Thomas-Rasset of $1.5 million for illegally downloading 24 songs from the Kazaa web site sometime in 2007 and violating the copyright of those who owned the songs?  After all, the cost of all 24 songs on legal sites is probably in the ballpark of a measly $50.  She is ordered to pay an average of $62,500 each for songs that most of us pay only a dollar or two for. 

The fact is that advances in technology have very much changed the way in which all forms of artistic expression are sold.  The sale of music was perhaps the first, with albums of music almost being a thing of the past in the reality of how music is sold.  But the increasing publication of electronic books and the new mechanisms for distributing video content will likely see copyright holders trying to extend the principles being laid down now in the music industry. 

Many see little harm in lifting a song here or a video there, and it is this view that is at the heart of the damages award in the Thomas-Rasset case.  In most cases, the damages that are assessed in civil cases are equal to the actual amount that a person lost as a result of the wrongful action.  In the case of downloading songs in violation of a copyright, such actual damages would be small and this concerned Congress when it was considering so-called “statutory damages” for copyright infringement.  Statutory damages may be assessed no matter what the actual value of the loss resulting from the infringement.  As Congress explained in its deliberations over the Digital Theft Deterrence and Copyright Damages Improvement Act in 1999, 

Many computer users are either ignorant that copyright laws apply to Internet activity, or they simply believe that they will not be caught or prosecuted for their conduct.  Also, many infringers do not consider the current copyright infringement penalties a real threat and continue infringing, even after a copyright owner puts them on notice that their actions constitute infringement and that they should stop the activity or face legal action. 

So the level of statutory damages was set at a level designed to get people’s attention:  between $750 and $30,000 (per work) when the infringement is non-willful and up to $150,000 when the infringement is willful.  They appear to have succeeded; the verdict in the Thomas-Rasset case has people’s attention. 

The case is also interesting because of its history.  The RIAA has maintained that it has been willing to settle the case for $5000, an amount that Thomas-Rasset finds unreasonable.  But in the first trial in 2007, she was found to have willfully violated the copyrights and was ordered to pay $222,000 — $9250 per song.  But the judge ordered a new trial because of an error in giving jury instructions, resulting that time in an order to pay $1.92 million — $80,000 per song — an amount that the judge described as “monstrous and shocking.”  At the time, he reduced the total award to $54,000, but a third trial resulted when the RIAA rejected the reduced amount. 

Is the award excessive?  It seems to be, but I was not on the jury and did not hear all the facts; all I really know about the case is what I have read in the newspapers and in the public briefs for the case.  What I do know is that as technology continues to advance and as books and videos are increasingly made available electronically, it is important to be aware that copyright-infringement issues are not theoretical.  Organizations that represent writers, artists, and composers see these technological advancements as a threat to the livelihoods of their members and actively work to ensure that penalties will be meaningful.

I Know It When I See It

It is easy to imagine the scene.  Les Amants was French director Louis Malle’s third film and had been tremendously popular in France and other European countries.  Many considered the film to be what established him as a serious talent.  So when the film was shown in the Coventry Village district of Cleveland Heights in Ohio in 1959, it probably attracted those people in the community who had an interest in seeing the works of foreign talents.  One can imagine men and women lining up at the Heights Art Theatre in this bohemian part of Ohio, perhaps pulling their coats tight around them on the cool autumn evening as they waited.  Surely the film was not as popular in sleepy Ohio as in the more cosmopolitan American cities of New York or San Francisco, but every part of the country has an element interested in such things.  Most waiting to view the film probably considered themselves to be reasonably sophisticated and looking forward to debates over late-night coffee about the merits and failings of Malle’s vision. 

There was just one problem.  The local government considered the film — which recounts the story of an unhappy upper-class woman who spurns both her husband and her lover for the uncertain excitement promised by a passing stranger — obscene.  The manager of the theater, Nico Jacobellis, was fined a total of $2500 for violating Ohio law by possessing and exhibiting an obscene film.  It is likely that few today would be in any way shocked by the film’s content, but it was Jacobellis’s conviction that resulted in Justice Potter Stewart’s famous proclamation about obscenity that “I know it when I see it, and the motion picture involved in this case is not it.” 

The contours of the guarantee in the U.S. Bill of Rights that “Congress shall make no law … abridging the freedom of speech” is one that the Supreme Court frequently struggles with.  Yesterday, the Court heard oral arguments in the case of Schwarzenegger v. Entertainment Merchants Assoc.  A transcript of the arguments can be found here

At issue in the case is a California law that prohibits the sale or renting of violent video games to children.  The definition of “violent video game” is reasonably specific in the statute, and this is relevant.  The statute seeks to regulate video games in which children play characters that “inflict serious injury … in a manner which is especially heinous, cruel, or depraved in that it involves torture or serious physical abuse to the victim,” with such terms being further defined to include that the “player relishes the virtual killing or shows indifference to the suffering of the victim.” 

No matter how strongly one feels about the right to free expression, including the right to expression that involves violent images, it is impossible not to recognize the concern of the legislature in wanting to regulate these types of games.  There are numerous studies that have been conducted by social scientists and medical associations that raise specific concerns with video games that go beyond what a viewer of a film or reader of a book experiences.  Books and films provide passive experiences.  But video games allow the child to “become” the character in the game inflicting the violence, and those studies have found a correlation between playing such games that influences the moral development of young people at an age when their senses of morality and sociability are not fully formed.  They have an increase in aggressive thoughts and behavior and become desensitized to violence in both minors and adults. 

This science has been criticized, and those criticisms need to be taken into account in a full exploration of the issues.  But for my purposes today, suppose that the science relied on by the state is accurate.  Does that science then justify this encumbrance on the First Amendment rights to expression?  It is not an easy decision.  As Justice Scalia amusingly noted during yesterday’s argument, the First Amendment does not read “Congress shall make no law abridging the freedom of speech except those that make sense.” 

There are many considerations that the Court needs to make sense of, but two of them stand out in particular.  First, how is the producer of a video game to know whether what is produced is a “deviant violent video game” as opposed to a “normal violent video game”?  Everyone agrees that some level of violence has always been accepted in artistic expression, with examples ranging from Grimm’s fairy tales to the Bible to cartoons being mentioned during the argument.  Such uses can be a powerful part of legitimate messages that are conveyed in artistic creations, and it clearly goes too far to prohibit all violence from any artistic expression, including video games.  It is reasonable to expect producers to know what crosses the line and what does not, particularly when every one of us has a different view as to when a certain level of violence becomes too much.  Justice Scalia incisively mocked the notion that the state should have a mechanism to examine each video game and decide, using language that makes us cringe and shudder:  “You should consider creating such a one.  You might call it the California Office of Censorship.” 

Second, should the law accept a different treatment for sex and violence?  One of the strongest arguments made in favor of California’s law is that it attempts to mirror the standards that have been set forth by the Supreme Court itself in regulating sexual expression.  Obscenity can be regulated in the United States, the Court having set forth a test decades ago to delineate when sexual expression crosses the line into unprotected obscenity.  The only justification the Court seems to offer is that sexual expression has a “historical tradition” of being regulated while violence does not. 

This is a difficult rationalization to accept.  And if anything, it appears to provide a result that many feel is backwards.  If there is scientific evidence that violent video games may hamper a child’s social development and make him less empathetic to the suffering of others, how does it make sense to allow such expression while regulating sexual expression just because one type of suppression is “traditional” and the other is not. 

It is very often the case that things that seemed scandalous years ago seem tame today, particularly when new types of expression are implicated.  Print images caused concerns centuries ago.  Motion pictures caused concerns decades ago.  Video games cause concerns today.  And something else will cause concerns in the future.  Each of these has been identified as being more “real” and therefore more likely to impact the way children develop, prompting calls for the government to intervene.  Anyone watching Les Amants today, with a modern sensibility, is likely to consider it almost prosaic in its themes and portrayals. 

In the end, perhaps Justice Stewart’s observation is even more profound than he intended.  Times change.  Morals change.  Technologies change.  But I still know it when I see it.

Have a Couple Beers and Call Me in the Morning

Catherine O’Leary’s cow.  Gavrilo Princip.  The hayfork of a drunk hired hand. 

Sometimes things have consequences all out of proportion to what we expect.  In my list, Catherine O’Leary’s cow is reputed to have kicked a kerosene lantern in 1871 and thereby cause the Great Chicago Fire, resulting in the death of some 300 people and the destruction of about a third of the city’s value.  Gavrilo Princip was a 19-year-old man who assassinated Archduke Franz Ferdinand of Austria, setting off a series of events that resulted in the Great War of 1914 – 1918. 

And the poor hired hand?  The story goes that one day when Wayne Wheeler was a boy, he was working on his family’s farm and his leg was poked by the hayfork of a drunken worker.  It traumatized him and he spent much of his life devoted to the abolition of alcohol, becoming the de facto leader of the Anti-Saloon League.  His efforts, organizing churches and other small temperance groups to implement a particularly effective form of pressure politics were instrumental in bringing about passage of the Eighteenth Amendment to the U.S. Constitution prohibiting “the manufacture, sale, or transportation of intoxicating liquors” within the U.S.  He claimed to have substantially written the National Prohibition Enforcement Act (a fact that the Act’s official author, Andrew Volstead, repeatedly denied) establishing executive power to enforce the Eighteenth Amendment.  The full text of the Volstead Act can be found here.  

During the 13 years that prohibition was in effect in the United States, alcohol consumption dropped by an estimated 30 percent as legal avenues for access disappeared and costs through illegal avenues rose higher than many people could afford.  It is generally accepted that the consequences of this experiment were mostly a flagrant contempt for the law and the rampant creation of illegal alcohol-distribution mechanisms. 

What is sometimes forgotten is the role that physicians played in maintaining access to alcohol.  They provided one of the few legal ways to obtain alcohol since the Volstead Act carved out an exception to “use liquor for medicinal purposes when prescribed by a physician.”  The alcohol prescription pads of the time look almost quaint today, with alcohol consumption as much a part of modern society as it was in the time before prohibition.  The idea of drugstores maintaining shelves of government-produced whiskey to dispense to those with prescriptions strikes our current mindsets as almost amusing.  It seems obvious to have been an exercise in futility trying to suppress a product so pervasively a part of the prevailing culture. 

The experiment on marijuana prohibition may similarly be coming to end, although that experiment has lasted far longer than the prohibition of alcohol.  In the early 1900’s, marijuana had been almost unknown in the United States, but it started to become more popular as Mexicans immigrated into the U.S., prompting efforts to ban it.  In these efforts, California has always been key, leading the way as other states progressively followed. 

California was the first state to ban marijuana in 1913, with many other states following in due course thereafter.  California was also the first state to soften its stance on marijuana consumption, allowing medical uses in 1996.  Again, many other states followed in due course.  And in next week’s election, California may again lead the way in fully relegalizing marijuana with its Proposition 19.  A copy of the text of the proposition may be found here.  It is worth noting that efforts to fully legalize marijuana in Alaska have failed, even though a 1975 case found personal use of marijuana at home protected by an unusually strong privacy provision in the Alaska Constitution.

In many ways, the currently availability of marijuana for medical purposes in a number of States mirrors what occurred during the era of alcohol prohibition, although marijuana is probably recognized for more legitimate medical purposes than alcohol.  During the period of alcohol prohibition, the availability of medical prescriptions made a mockery of prohibition efforts.  To be certain, there were many who believed in the therapeutic value of alcohol and there are genuine medical treatments to be had with alcohol, but most prescriptions were filled simply so that people could experience its intoxicating effects.  Similarly today, many believe that medical prescriptions for marijuana make a similar mockery of efforts to prohibit its use more generally.  Again, there are legitimate therapeutic uses for marijuana, but an honest assessment of medical-marijuana laws is that they have been used as a wedge to gain legal access to its psychoactive properties. 

Even if California relegalizes marijuana in next week’s vote, there is still the matter of federal drug-regulation statutes, which prohibit the use of marijuana throughout the United States.  In addition to the banning of marijuana use by several states, the federal government began to regulate its use nationally with passage of the Marijuana Tax Act in 1937.  A copy of the Act’s text may be found here.   What is perhaps interesting about the Marijuana Tax Act is that it included a specific exception for medical uses prescribed by physicians.

The current Controlled Substances Act, which was passed in 1970 in response to President Nixon’s declaration of a “war on drugs” and supplanted the Marijuana Tax Act, includes no such exception.  A conflict thus exists between federal and state law in the several states where medical uses of marijuana are permitted under state law.  The conflict was tested shortly after California decriminalized such uses in 1996 in the case of Gonzales v. Raich.  A copy of the full opinion can be read here.  While the case confirmed the authority of the federal government to ban the use of marijuana even in states that have approved it for medical purposes, the policy of the Obama administration has been not to enforce the federal ban with respect to medical users.  

The ultimate impact of California’s decision next week will be interesting and may well take years to understand fully.  But one thing is certain:  if the proposition passes, it is a certainty that similar proposals will be tried in other states and that additional pressure will be brought to bear on the federal government to follow the lesson of prohibition to its ultimate conclusion.

Location, Location, Location

John Entick was annoying.  His prose was not particularly good and he used it often to criticize the government of the day, sometimes writing blistering attacks in The Monitor.  But the solution to this annoyance was relatively simple:  On November 11, 1762, four messengers of the King acting on warrant orders of Lord Halifax broke into Entick’s home to seize his private papers.  It didn’t matter that boxes and desks were locked; the locks were easily broken so that their confiscation of anything troublesome could be complete. 

Entick challenged the lawfulness of the search in the case of Entick v. Carrington.  It would prove to be one of the more important cases in English law that helped to shape the Fourth Amendment to the U.S. Constitution, which asserts the right of individuals not to be subjected to unreasonable searches or seizures by the government without the issuance of a warrant that is based upon probable cause and that is reasonably particular in describing what is to be searched or seized.

Entick prevailed in the case, with the court ruling that the warrant issued by Lord Halifax was defective because there had been no demonstration of probable cause that Entick had committed a crime and because the warrant was too broad in allowing such a general confiscation.  While the language in the ruling is somewhat archaic, it can be read here

The Fourth Amendment to the U.S. Constitution is the most important constraint on the ability of the government to engage in fishing expeditions for evidence of wrongdoing.  We all recognize the need for the government at times to engage in searches for evidence; it is a necessary part of the process of law enforcement.  But it cannot do so capriciously.  There is otherwise too great a potential for misuse of police powers by the state. 

At times, it seems as though this fundamental principle is forgotten. 

There have been reports in the news over the last several months regarding the use of GPS tracking devices by the police.  The pattern is generally the same:  the police attach such a device to a vehicleand then keep track of everywhere its owner goes.  It is astonishing how much can be inferred about a person’s private life just by having access to that information.  What is alarming is not so much that the government makes use of this technology in law enforcement, but that these devices are being used without a warrant ever being issued and that this practice is being sanctioned by at least some courts. 

The facts considered in United States of America v. Juan Pineda-Moreno are clear:  Drug Enforcement Agency officers saw a group of men buy a large amount of fertilizer often used to grow marijuana and so snuck into the driveway of one of them at about 4:00 AM, attached a GPS device to his Jeep, and then monitored his whereabouts with the device.  They had no warrant. 

The Ninth Circuit found that this did not violate the Fourth Amendment, even though the Jeep was parked in the man’s driveway at the time.  A copy of the opinion can be read here.  Other jurisdictions have come to a different view, finding instead that these types of actions — attaching tracking devices to vehicles without a warrant so that a person’s movements can be monitored — do violate the Fourth Amendment,  and I find myself in greater sympathy with them. 

At issue is what the scope of our rights to be free from “unreasonable” searches should be when technological advances enable the police to monitor people in ever more intrusive ways.  An important dissent in the Ninth Circuit case spells out some of the ramifications.  A copy of that dissent can be read here (the dissent is technically to a request for en banc rehearing and not to the deciding opinion itself).  It is not just GPS devices snuck onto our cars in the dead of night that are used to monitor us.  Consider the use of cellular telephones, whose location may also be readily determined.  At the request of the government, cell-phone providers will obligingly ping a cell phone to determine its location and provide that information to the police.  The provider Sprint has disclosed that last year it provided 8 million such location ping results to the police.  The number of requests became so great that Sprint developed an automated web site to enable the police to check on the location of cell phones at will.  Services such as LoJack or OnStar are also used by the police to identify the location of vehicles.  Credit-card suppliers will inform the police where the cards have been used. 

Entick v. Carrington warns us of the potential for abuse when governments are given unfettered power to conduct searches.  As the U.S. Supreme Court noted more than a hundred years ago, that case “was welcomed and applauded by the lovers of liberty in the colonies … it may be confidently asserted that its propositions were in the minds of those who framed the fourth amendment to the constitution .”  Boyd v. United States, 116 U.S. 616 (1886).  It is a mistake to trust governments with that kind of unrestricted power.  Not because they will necessarily be malicious in using it — although we are too well aware that that does also happen at times — but more broadly because the natural temptation in pursuing even legitimate ends may perniciously encroach on the rights of those who have done nothing wrong. 

As technology continues to advance, we need to be vigilantly on guard to resist that encroachment when we give power to those who govern us.