The Faculty Lounge

U.S. Supreme Court Upholds Constitutionality of DNA Collection Upon Arrest (Maryland v. King)

The U.S. Supreme Court ruled this morning, in Maryland v. King, that it is constitutional under the Fourth Amendment’s protection against “unreasonable” searches and seizures for the state to compel collection of DNA from arrestees. The probable cause required to arrest someone under the Fourth Amendment permits fingerprinting and taking photographs during the booking process, and the Court held that collecting DNA (limited to 13 loci in supposed “junk DNA”) was not relevantly different. The decision was 5-4, with Kennedy writing for the Court and joined by Chief Justice Roberts and Justices Thomas, Alito, and Breyer. Justice Scalia dissented in his usual spirited way, joined by Justices Ginsburg, Sotomayor, and Kagan.

I may write more about this decision if I have time. In the meantime, here is a still-relevant primer I co-authored in 2004 on legal and ethical debates involving DNA and the criminal justice system (including issues related to both offender DNA databases and post-conviction access to potentially exculpatory crime scene DNA). Note that Justice Breyer (whose alignment with the "conservative" wing (sans Scalia) of the Court may surprise some), in addition to being the Court’s resident patent expert (except him to play a large role in the upcoming Myriad gene patenting decision), has been following debates about DNA and the criminal justice system for some time. He authored Chapter 2 of the book I just linked to.

Science, Art, Policy, and the Importance of Good Science Communication

Recently, several media outlets, including NPR, the New York Times, and Big Think, have covered the story of Ph.D. student in Electronic Arts Heather Dewey-Hagborg, who makes 3-D "masks," or "portraits," of the faces of unknown individuals using the DNA they unwittingly discard on such things as cigarette butts and chewing gum. The media coverage has conjured an Orwellian dystopia for readers (check out the first few comments on the NPR piece for a sample). The artist herself apparently shares these concerns. In addition to her upcoming exihibit, Stranger Visions, she will be leading policy discussions on the implications of her art. She's also working with the Delaware medical examiner's office to try to identify the remains of a 20-year-old body.

The problem? As I commented over at Bill of Health, based on what she's said about her methods, they do not allow her to predict someone's face with anything but the crudest of guesses.

Matthew Herper of Forbes took my criticisms and those of others directly to the artist. I confess that her response does not make me feel any better. Even if you're "only" engaging in art, it seems to me that when that art has an obvious science policy message — indeed, one that you invite — you have some obligation to be clear about how "speculative," as she puts it, your art is. But when you decide to move from the world of art into the world of science, and to start leading policy discussions based on your speculative art and working with forensic examiners? Then you really have a strong duty to be very clear about what your work does and does not mean. Among other things, you should take care when talking to the media, and correct the media if they get it wrong. (This is, of course, a lesson that applies to all scholars, including legal scholars, not only to scientists.)

Yesterday, the Social Science Genetic Association Consortium, an international consortium that pools and conducts social science research on existing genome-wide association study (GWAS) data, and on whose Advisory Board I sit, published (online ahead of print) the results of its first study in Science. That paper — "GWAS of 126,559 Individuals Identifies Genetic Variants Associated with Educational Attainment" (plus supplemental data) — like much human genetics research, has the potential to be misinterpreted in the lay, policy, and even science worlds. That's why, in addition to taking care to accurately describe the results in the paper itself, including announcing the small effect sizes of the replicated SNPs in the abstract, being willing to talk to the media (many scientists are not), and engaging in increasingly important "post-publication peer review" conversations on Twitter (yes, really) and elsewhere — we put together this FAQ of what the study does — and, just as important, does not — show. So far, our efforts have been rewarded with responsible journalism that helps keep the study's limits in the foreground. Perhaps Dewey-Hagborg should consider issuing a similar FAQ with her speculative art.

[Adapted from a post and comments at Bill of Health]

An Open Letter From a Genomic Altruist to a Genomic Extrovert

This post is part of Bill of Health's symposium on the Law, Ethics, and Science of Re-Identification Demonstrations. You can call up all of the symposium contributions here. We’ll continue to post contributions throughout the week. 

Dear Misha:

In your open letter to me, you write:

No one is asking you to be silent, blasé or happy about being cloned (your clone, however, tells me she is “totally psyched”).

First things first: I have an ever-growing list of things I wish I had done differently in life, so let me know when my clone has learned how to read, and I’ll send it on over; perhaps her path in life will be sufficiently similar to mine that she’ll benefit from at least a few items on the list.

Moving on to substance, here's the thing: some people did say that PGP participants have no right to complain about being re-identified (and, by logical extension, about any of the other risks we assumed, including the risk of being cloned). It was my intention, in that post, to articulate and respond to three arguments that I’ve encountered, each of which suggests that re-identification demonstrations raise few or no ethical issues, at least in certain cases. To review, those arguments are:

1. Participants who are warned by data holders of the risk of re-identification thereby consent to be re-identified by third parties.
2. Participants who agree to provide data in an open access format for anyone to do with it whatever they like thereby gave blanket consent that necessarily included consent to using their data (combined with other data) to re-identify them.
3. Re-identification is benign in the hands of scholars, as opposed to commercial or criminal actors.

I feel confident in rejecting the first and third arguments. (As you’ll see from the comments I left on your post, however, I struggled, and continue to struggle, with how to respond to the second argument; Madeleine also has some great thoughts.) Note, however, two things. First, none of my responses to these arguments was meant to suggest that I or anyone else had been “sold a bill of goods” by the PGP. I’m sorry that I must have written my post in such a way that it leant itself to that interpretation. All I intended to say was that, in acknowledging the PGP’s warning that re-identification by third parties is possible, participants did not give third parties permission to re-identify them. I was addressing the relationship between re-identification researchers and data providers more than that between data providers and data holders.

Second, even as to re-identification researchers, it doesn’t follow from my rejection of these three arguments that re-identification demonstrations are necessarily unethical, even when conducted without participant consent. Exploring that question is the aim, in part, of my next post. What I tried to do in the first post was clear some brush and push back against the idea that under the PGP model — a model that I think we both would like to see expand — participants have given permission to be re-identified, “end of [ethical] story.”

Reflections of a Re-Identification Target, Part I: Some Information Doesn’t Want To Be Free

[This post is part of the online symposium I've organized over at Bill of Health on the Law, Ethics, and Science of Re-Identification Demonstrations. Background on the symposium is here, and you can call up all of the symposium contributions here. We'll have more contributions into next week.]

I wear several hats for purposes of this symposium, in addition to organizer. First, I’m trained as a lawyer and an ethicist, and one of my areas of scholarly focus is research regulation and ethics, so I see re-identification demonstrations through that lens. Second, as a member of the advisory board of the Social Science Genetics Association Consortium (SSGAC), I advise data holders about ethical and regulatory aspects of their research, including issues of re-identification. I may have occasion to reflect on this role later in the symposium. For now, however, I want to put on my third hat: that of data provider to (a.k.a. research participant in) the Personal Genome Project (PGP), the most recent target of a pair of re-identification “attacks,” as even re-identification researchers themselves seem to call them.

In this first post, I’ll briefly discuss my experience as a target of a re-identification attack. In my discussions elsewhere about the PGP demonstrations, some have suggested that re-identification requires little or no ethical justification where (1) participants have been warned about the risk of re-identification; (2) participants have given blanket consent to all research uses of the data they make publicly available; and/or (3) the re-identification researchers are scholars rather than commercial or criminal actors.

In explaining below why I think each of these arguments is mistaken, I focus on the PGP re-identification demonstrations. I choose the PGP demonstrations not to single them out, but rather for several other reasons. First, the PGP attacks are the case studies with which, for obvious reasons, I’m most familiar, and I’m fortunate to have convinced so many other stakeholders involved in those demonstrations to participate in the symposium and help me fill out the picture with their perspectives. I also focus on the PGP because some view it as an “easy” case for re-identification work, given the features I just described. Therefore, if nonconsensual re-identification attacks on PGP participants are ethically problematic, then much other nonconsensual re-identification work is likely to be as well. Finally, although today the PGP may be somewhat unusual in being so frank with participants about the risk of re-identification and in engaging in such open access data sharing, both of these features, and especially the first, shouldn’t be unusual in research. To the extent that we move towards greater frankness about re-identification risk and broader data sharing, trying to achieve clarity about what these features of a research project do — and do not — mean for the appropriateness of re-identification demonstrations will be important.

Having argued here about how not to think about the ethics of re-identification studies, in a later post, I plan to provide some affirmative thoughts about an ethical framework for how we should think about this work.

Online Symposium on the Law, Ethics & Science of Re-identification Demonstrations

Over the course of the last fifteen or so years, the belief that “de-identification” of personally identifiable information preserves the anonymity of those individuals has been repeatedly called up short by scholars and journalists. It would be difficult to overstate the importance, for privacy law and policy, of the early work of “re-identification scholars,” as I’ll call them. In the mid-1990s, the Massachusetts Group Insurance Commission (GIC) released data on individual hospital visits by state employees in order to aid important research. As Massachusetts Governor Bill Weld assured employees, their data had been “anonymized,” with all obvious identifiers, such as name, address, and Social Security number, removed. But Latanya Sweeney, then an MIT graduate student, wasn’t buying it. When, in 1996, Weld collapsed at a local event and was admitted to the hospital, she set out to show that she could re-identify his GIC entry. For twenty dollars, she purchased the full roll of Cambridge voter-registration records, and by linking the two data sets, which individually were innocuous enough, she was able to re-identify his GIC entry. As privacy law scholar Paul Ohm put it, “In a theatrical flourish, Dr. Sweeney sent the Governor’s health records (which included diagnoses and prescriptions) to his office.”

Sweeney's demonstration led to important changes in privacy law, especially under HIPAA. But that demonstration was just the beginning. In 2006, the New York Times was able to re-identify one individual (and only one individual)  in a publicly available research dataset of the three-month AOL search history of over 600,000 users. The Times demonstration led to a class-action lawsuit (which settled out of court), an FTC complaint, and soul-searching in Congress. That same year, Netflix began a three-year contest, offering a $1 million prize to whomever could most improve the algorithm by which the company predicts how much a particular user will enjoy a particular movie. To enable the contest, Netflix made publicly available a dataset of the movie ratings of 500,000 of its customers, whose names it replaced with numerical identifiers. In a 2008 paper, Arvind Narayanan, then a graduate student at UT-Austin, along with his advisor, showed that by linking the “anonymized” Netflix prize dataset to the Internet Movie Database (IMDb), in which viewers review movies, often under their own names, many Netflix users could be re-identified, revealing information that was suggestive of their political preferences and other potentially sensitive information. (Remarkably, notwithstanding the re-identification demonstration, after awarding the prize in 2009 to a team from AT&T, in 2010, Netflix announced plans for a second contest, which it cancelled only after tussling with a class-action lawsuit (again, settled out of court) and the FTC.) Earlier this year, Yaniv Erlich and colleagues, using a novel technique involving surnames and the Y chromosome, re-identified five men who had participated in the 1000 Genomes Project — an international consortium to place, in an open online database, the sequenced genomes of (as it turns out, 2500) “unidentified” people — who had also participated in a study of Mormon families in Utah.

Most recently, Sweeney and colleagues re-identified participants in Harvard’s Personal Genome Project (PGP), who are warned of this risk, using the same technique she used to re-identify Weld in 1997. As a scholar of research ethics and regulation — and also a PGP participant — this latest demonstration piqued my interest. Although much has been said about the appropriate legal and policy responses to these demonstrations (my own thoughts are here), there has been very little discussion about the legal and ethical aspects of the demonstrations themselves. As a modest step in filling that gap, I’m pleased to announce an online symposium, to take place the week of May 20^th, that will address both the scientific and policy value of these demonstrations and the legal and ethical issues they raise. I’ll cross-post my own contribution here, but the full symposium will be hosted over at Bill of Health. Participants fill diverse stakeholder roles (data holder, data provider — i.e., research participant, re-identification researcher, privacy scholar, research ethicist) and will, I expect, have a range of perspectives on these questions:

Misha Angrist

Madeleine Ball

Daniel Barth-Jones

Yaniv Erlich

Beau Gunderson

Stephen Wilson

Michelle Meyer

Arvind Narayanan

Paul Ohm

Latanya Sweeney

Jennifer Wagner

I hope readers will join us on May 20.

Are You Ready for Some . . . Research? Uncertain Diagnoses, Research Data Privacy, & Preference Heterogeneity

As most readers are probably aware, the past few years have seen considerable media and clinical interest in chronic traumatic encephalopathy (CTE), a progressive, neurodegenerative condition linked to, and thought to result from, concussions, blasts, and other forms of brain injury (including, importantly, repeated but milder sub-concussion-level injuries) that can lead to a variety of mood and cognitive disorders, including depression, suicidality, memory loss, dementia, confusion, and aggression. Once thought mostly to afflict only boxers, CTE has more recently been acknowledged to affect a potentially much larger population, including professional and amateur contact sports players and military personnel.

CTE is diagnosed by the deterioration of brain tissue and tell-tale patterns of accumulation of the protein tau inside the brain. Currently, CTE can be diagnosed only posthumously, by staining the brain tissue to reveal its concentrations and distributions of tau.[1] According to Wikipedia, as of December of 2012, some thirty-three former NFL players have been found, posthumously, to have suffered from CTE. Non-professional football players are also at risk; in 2010, 17-year-old high school football player Nathan Styles became the youngest person to be posthumously diagnosed with CTE, followed closely by 21-year-old University of Pennsylvania junior lineman Owen Thomas. Hundreds of active and retired professional athletes have directed that their brains be donated to CTE research upon their deaths. More than one of these players died by their own hands, including Thomas, Atlanta Falcons safety Ray Easterling, Chicago Bears defensive back Dave Duerson, and, most recently, retired NFL linebacker Junior Seau. In February 2011, Duerson shot himself in the chest, shortly after he texted loved ones that he wanted his brain donated to CTE research. In May 2012, Seau, too, shot himself in the chest, but left no note. His family decided to donate his brain to CTE research in order “to help other individuals down the road.” Earlier this month, the pathology report revealed that Seau had indeed suffered from CTE. Many other athletes, both retired and active, have prospectively directed that their brains be donated to CTE research upon their death.[2] Some 4,000 former NFL players have reportedly joined numerous lawsuits against the NFL for failure to protect players from concussions. Seau’s family, following similar action by Duerson’s estate, recently filed a wrongful death suit against both the NFL and the maker of Seau’s helmet.

The fact that CTE cannot currently be diagnosed until after death makes predicting and managing symptoms and, hence, studying treatments for and preventions of CTE, extremely difficult. Earlier this month, retired NFL quarterback Bernie Kosar, who sustained numerous concussions during his twelve-year professional career — and was friends with both Duerson and Seau — revealed both that he, too, has suffered from various debilitating symptoms consistent with CTE (but also, importantly, with any number of other conditions) and also that he believes that many of these symptoms have been alleviated by experimental (and proprietary) treatment provided by a Florida physician involving IV therapies and supplements designed to improve blood flow to the brain. If we could diagnose CTE in living individuals, then they could use that information to make decisions about how to live their lives going forward (e.g., early retirement from contact sports to prevent further damage), and researchers could learn more about who is most at risk for CTE and whether there are treatments, such as the one Kosar attests to, that might (or might not) prevent or ameliorate it.

Last week, UCLA researchers reported that they may have discovered just such a method of in vivo diagnosis of CTE. In their very small study, five research participants — all retired NFL players — were recruited “through organizational contacts” “because of a history of cognitive or mood symptoms” consistent with mild cognitive impairment (MCI).[3] Participants were injected with a novel positron emission tomography (PET) imaging agent that, the investigators believe, uniquely binds to tau. All five participants revealed “significantly higher” concentrations of the agent compared to controls in several brain regions. If the agent really does bind to tau, and if the distributions of tau observed in these participants’ PET scans really are consistent with the distributions of tau seen in the brains of those who have been posthumously-diagnosed CTE, then these participants may also have CTE.[4]

That is, of course, a lot of “ifs.” The well-known pseudomymous neuroscience bloggerNeurocritic[5] recently asked me about the ethics of this study. He then followed up with his own posts laying out his concerns about both the ethics and the science of the study. Neurocritic has two primary concerns about the ethics. First, what are the ethics of telling a research participant that they may be showing signs of CTE based on preliminary findings that have not been replicated by other researchers, much less endorsed by any regulatory or professional bodies? Second, what are the ethics of publishing research results that very likely make participants identifiable? I’ll take these questions in order.

Do You Want to Know Who Owns a Gun (on Your Faculty)?

The Journal News, a local publication based in Westchester County, New York has published an interactive map of the names and addresses of  pistol permit holders in Westchester and Rockland Counties.  Officials in nearby Putnam County (NY) have declined to release the information in response to FOIA requests.

The publication of the map has resulted in threats to the publishers, prompting the Journal News to hire armed guards to protect the organization's offices (see news coverage here, e.g.).  Public opinion on the appropriateness of the publication of the information is divided (see, e.g., here). 

In some parts of the country, in some towns and cities, at some universities, gun ownership may be part of the culture.  Not so in my slice of New York or at my institution, though.  Given that 40% of my faculty colleagues live in Westchester or Rockland County, I admit that the map piqued my interest.  After some hesitation, I did look at the map (as did lots of other folks; apparently the map is the most popular feature on the website of the Journal News).  I admit to feeling somewhat uneasy about the act of looking, though, for reasons I can't quite articulate.  On the one hand, I believe that all state licenses should be a matter of public record.  On the other hand, I can imagine that if I were a gun owner in Westchester or Rockland County, I might not want that information available to my neighbors.

Kelsey's Law on cellphone data

Has anyone been following the debates surrounding the recent enactment by a number of states of laws that require cellphone carriers to provide police with a customer's location information in case of emergency?  I saw a news report today that Missouri is the 8th state to enact such a law.  It seems to me like a good idea despite privacy concerns and concerns about possible legal liability of cellphone carriers for disclosing the information.  But I suppose a lot would depend on how the laws were actually drafted.  What is the best way to draft the concept of 'emergency' to protect civil rights concerns but still allow the police to investigate promptly and effectively in situations where time may be of the essence?  Has anyone compared the drafting of the various state acts on this point?  I would be interested in your thoughts.

Faculty Hiring, and the Facebook Question

You are on your law school's faculty appointments committee.  You and your committee colleagues pull several FAR Forms that merit consideration and discussion, perhaps leading to an invitation to interview with your team at the AALS Faculty Recruitment Conference (memo to self:  block out October 11-13, 2012).

At some point during the recruiting process, your team is likely to request a current c.v., teaching evaluations, a law school transcript, a research agenda, a list of references, copies of scholarship, etc.

Will your team ask for a candidate's Facebook password?

If you are the candidate, how will you respond to such a request?

Some thoughts here.

Novelty or Tool for Rapists and Stalkers? Why Privacy Settings Really, Really Matter

Over at the blog Cult of Mac (here), I read about an app that illustrates the importance of being cognizant of one's online presence.  In This Creepy App Isn't Just Stalking Women Without Their Knowledge, Its a Wake-Up Call About Facebook Privacy, John Brownlee writes about "Girls Around Me."  Here is an excerpt:

It’s an app that can be interpreted many ways. It is as innocent as it is insidious; it is just as likely to be reacted to with laughter as it is with tears; it is as much of a novelty as it has the potential to be used a tool for rapists and stalkers.

And more than anything, it’s a wake-up call about privacy. * * * 

Girls Around Me is a standard geolocation based maps app, similar to any other app that attempts to alert you to things of interest in your immediate vicinity: whether it be parties, clubs, deals, or what have you. When you load it up, the first thing Girls Around Me does is figure out where you are and load up a Google Map centered around your location. The rest of the interface is very simple: in the top left corner, there’s a button that looks like a radar display, at the right corner, there’s a fuel meter (used to fund the app’s freemium model), and on the bottom left is a button that allows you to specify between whether you’re interested in women, men or both.

It’s when you push the radar button that Girls Around Me does what it says on the tin. I pressed the button for my friends. Immediately, Girls Around Me went into radar mode, and after just a few seconds, the map around us was filled with pictures of girls who were in the neighborhood. Since I was showing off the app on a Saturday night, there were dozens of girls out on the town in our local area. * *  * 

Apparently (see here), it is possible for anyone with a publicly available profile on Facebook to be "checked in" to locations (and thus to Girls Around Me) by a "friend" without knowing it.

[A]s sleazy as this app seemed, Girls Around Me wasn’t actually doing anything wrong. Sure, on the surface, it looks like a hook-up app like Grindr for potential stalkers and date rapists, but all that Girls Around Me is really doing is using public APIs from Google Maps, Facebook and Foursquare and mashing them all up together, so you could see who had checked-in at locations in your area, and learn more about them. Moreover, the girls (and men!) shown in Girls Around Me all had the power to opt out of this information being visible to strangers, but whether out of ignorance, apathy or laziness, they had all neglected to do so. This was all public information. Nothing Girls Around Me does violates any of Apple’s policies.

In fact, Girls Around Me wasn’t even the real problem. * * * 

[L]ike many tech professionals, I had taken for granted that people understood that their Facebook profiles and Foursquare data were publicly visible unless they explicitly said otherwise… and like my beardo Diaspora friend, I secretly believed that people who were exposed this way on the Internet without their knowledge were foolish. *  * * 

Girls Around Me isn’t an app you should use to pick up girls, or guys for that matter. This is an app you should download to teach the people you care about that privacy issues are real, that social networks like Facebook and Foursquare expose you and the ones you love, and that if you do not know exactly how much you are sharing, you are as easily preyed upon as if you were naked. I can think of no better way to get a person to realize that they should understand their Facebook privacy settings then pulling out this app.

Good reminder to all of us.

 

 

 

Snooping at the Antebellum Library

Thanks to a pointer from Danielle Citron, I learned about Margot Kaminski's latest ("Reading Over Your Shoulder: Social Readers and Privacy Law"), which deals with the problem of sharing (sometimes rather widely) the contents of a reader's virtual bookbag.  This is an issue of obviously large proportions for those concerned with privacy.  But for a moment I want to part company with my librarian friends, or maybe it's not so much parting company with them as pointing out the importance of their project: as a historian I like it when we have lists of things Americans have read.  

 One of the projects I'm working on (slowly right now, but I hope to return to it with some vigor soon) is a study of the reading habits of southern college students before the Civil War.  I'm interested in what uses students (and faculty, too) made of ideas in books.  Sometimes I get at this in pretty direct fashion -- for instance by going back to the books that they cite and seeing what they pull out and cite and what's left behind.   I'm going to be talking some about this at the University of Florida next week when I discuss Thomas Cobb, a law professor and later Confederate general, who wrote a proslavery legal treatise.  Cobb brought a lot of sources together to create a zealously proslavery vision of human history.  And one of the many sources he turned to were histories of Egypt, as well as treatises on reform of employment law in England.  Cobb drew on a lot of different sources to create the sense that slavery was ordained of God, natural, and could not be ended without demographic and economic catastrophe to the white south.  And of course one of the great virtues of legal treatises for those of us who work on the "history of the book" is that we can tell where judges took their ideas.  Then we can compare judges' opinions on similar issues to make some kind of assessment of differences between judges' reasoning styles.  Or you can see the authors and works that orators refer to -- never ceases to surprise me how much one can learn from paying attention to the ideas that come out of people's mouths or off their printing presses.

But at other times I want to come at the question rather differently -- not by using a single text and asking what sources were poured into it (and what ideas were left out).  I want to know which books someone read.  And therein lies the issue -- how much I enjoy snooping over the shoulders of students  to see the books they borrowed from the college literary society libraries, for the records of several college literary societies have survived that have the books students borrowed -- not just the books in their catalog, which is valuable in itself, but actually what books the students borrowed.  I get completely that this is a huge issue of privacy, but for precisely this reason, the lists of books that a student borrowed are helpful -- because we can begin to formulate a picture of the mind.

This calls to mind Ralph Ellison's admonition to African American newspaper editors to write as though the sheriff is looking over their shoulder reading their work -- because he is.

 The illustration is of one of the antebellum literary society buildings at the University of Georgia.

Secrets of a Sperm Stealer?

A resident of Allegheny County, New York is suing a fertility clinic and medical lab in Texas on the grounds that the clinic used his stolen sperm to inseminate his girlfriend.  (For a copy of the complaint, see here.) Jamie Pressil alleges that "[d]ue to the unexpected birth of his children caused by Defendants, Pressil suffered severe mental anguish and incurred economic harm due to substantial child support payments.  

The factual background is a bit murky, but the alleged basic storyline appears to be this: Mr. Pressil's former girlfriend and domestic partner, Ms. Anetria Burnett, supposedly secreted Mr. Pressil's used condoms to a fertility clinic, which then used Mr. Pressil's sperm to inseminate Ms. Burnett.  Ms. Burnett subsequently gave birth to twins. Mr. Pressil took a DNA test that proved he was the father and then began paying child support of $800 per month. Related news reports are here, here, and here. 

The clinic reportedly has a copy of a consent form allegedly signed by Mr. Pressil, as well as the results from bloodwork allegedly performed on Mr. Pressil around the time of Ms. Burnett's insemination.  The costs of the fertility services were charged to Mr. Pressil's credit card.  See news stories here and here.

In a separate action, Mr. Pressil has been charged with assaulting Ms. Burnett in 2010 (see news story here).

No doubt, there are several factual issues to be resolved.  But if the clinic did in fact use the sperm without Mr. Pressil's consent, might the clinic have violated Mr. Pressil's constitutional rights (assuming one could show state action)?  Glenn Cohen has suggested a constitutional right not to become a parent in his Stanford Law Review article, The Constitution and the Rights Not to Procreate.  And if Ms. Burnett did take Mr. Pressil's discarded condoms, did she steal his "property"?  Does it matter how and where the condom was discarded?  Does any "theft" only become legally significant if stolen sperm is "converted" into children?

Margaret Hu on U.S. v. Jones

Margaret Hu, a visiting assistant professor at Duke Law School, has posted over at the ACS blog on  U.S. v. Jones. Margaret's research focuses on immigration and surveillance policy. She previously served as special policy counsel on immigration-related discrimination in the Civil Rights Division of the U.S. Department of Justice.  

Is Rep. Anthony Weiner a Sexual Harasser?

Is Representative Anthony Weiner a sexual harasser?  I think not, based on what we know so far.  Here's how I see it:

• Some stupid people are sexual harassers.
• Some sexual harassers are stupid people.
• Not all stupid people are sexual harassers.
• Not all sexual harassers are stupid people.

By stupid people, I mean those who are susceptible to making or proven to have made mistakes of judgment, especially in the realm of sexualized communications.  Is there any among us who has not made a mistake of judgment, even if not in the particular nature or realm of Rep. Weiner's?

Let's be clear that sexual harassment is not simply communication of a sexual nature.  It is intimidating or unwelcome speech or action of a sexual nature that impacts someone's work or educational environment.  If one adult wants to "sext" another in a non-work/non-education context, that may be stupid and it may reflect on the sender's poor judgment, but it's not sexual harassment, in my opinion.

Fertility, Taxes and Unforeseen Circumstances

Fertility and taxes are seemingly unrelated topics with surprising intersections.  Consider this example. Taxpayers can exclude up to $250,000 (if single) or $500,000 (if married and filing jointly) of gain on the sale of a principal residence, if certain requirements are met.  A homeowner who moves too early or too often gets no benefit … unless the move is motivated by “a change in place of employment, health, or to the extent provided in regulations, unforeseen circumstances.”  One unforeseen circumstance is the birth of twins, according to the Treasury Regulations.  

According to the Centers for Disease Control and Prevention (here), approximately 4.6% of total U.S. births are the result of ovulation stimulation medication alone (without in vitro fertilization). 22.8% of all multiple births in the U.S. in 2005 resulted from ovulation stimulation medication (used alone, without IVF).  Although multiple births are “unforeseen” according to the IRS, the CDC stats suggest otherwise.  Even so, I’m not sure I’d want the IRS to start doing a facts-and-circumstances inquiry every time the parents of multiples try to avail themselves of the tax benefit under IRC Section 121. 

 

What Happens When You Find the FBI's GPS Tracker on Your Car

Over at Wired there's an interesting story describing what happened when a 20 year old found the FBI's GPS tracker that was surreptititously placed on his car.  At right is a picture of the device courtesy of the Wired story.  Apparently the target of the surveillance brought his car in for an oil change.  The mechanic saw a wire sticking out from underneath the car and pulled out the device.  The target of the surveillance posted photos of the device on-line to find out what it was.  It turns out the device is an Orion Guardian ST820 an older model GPS tracking device.  Not surprisingly, it didn't take long for the FBI to show up at the target's door demanding their device back. 

The target of the surveillance is Yasir Afifi, a U.S. born citizen, business student and son of an Islamic-American man who died in Egypt last year.  The ACLU has jumped onto the case declaring to Afifi "This is the kind of thing we like to throw lawyers at."  According to the report, "Brian Alseth from the American Civil Liberties Union in Washington state contacted Afifi after seeing pictures of the tracking device posted online and told him the ACLU had been waiting for a case like this to challenge the ruling."

A very interesting story, well worth the read. 

 

New Jersey Privacy/Hate Crime Prosecutions

I've been recently following the case of the Rutgers student who committed suicide last week after videos showing him engaging in a homosexual encounter were posted on the Internet by his roommate and another student.  Of course, the case raises many issues about cyberbullying and invasions of privacy.  But what particularly interests me - and others may be able to illuminate the law on this - is that New Jersey appears to have very strong privacy laws and hate crime laws which enable state prosecution based on both the invasion of the student's privacy and the fact that the conduct may have been motivated by animus against homosexuals.  According to the MSNBC coverage, the hate crime laws come into play at the time of sentencing, rather than as a separate cause of action, to raise the penalty for the criminal conduct under the privacy laws.  This would seem to make the laws easier to enforce than in some other states (and at the federal level) where many hate crime laws require proof of an intent by the perpetrator to cause harm to the victim.  I'm also under the impression than many existing harassment and bullying laws also require a credible threat of immediate harm to the victim.  Thus, New Jersey's approach seems to be particularly stong in comparison.  Does anyone know anything about the history of the New Jersey criminal laws on privacy and hate crime and why they seem to be different to the laws in many other states, assuming I'm correct about that?

More on the FISC Rules of Procedure

In a prior post I discussed a change to the Foreign Intelligence Surveillance Court's Rules of Procedure.  Marc Ambinder, writing at The Atlantic and Steven Aftergood at Secrecy News both posted responses (thanks to both for the comments and traffic).  Ambinder tied my post to recent developments in the Ninth Circuit, noting:

"Just yesterday, the 9th circuit court of appeals preserved the executive branch's ability to assert the State Secrets Privilege in cases where national security could be jeopardized by even the discovery phase of a trial. The only consideration that mattered to the court is whether the information's release could actually damage national security... But the FISC, which regularly deals with highly classified information involving sources and methods, now wants to positively assert that it has the authority, in determining when and whether to release information about cases, to order the executive branch to figure out the appropriate redactions. Before, the executive branch could redact whatever it wanted. Now, the court wants to decide whether the executive branch can redact whatever it wants." 

Aftergood, on the other hand thinks both Ambinder and I misunderstand the Court's change in language, and he even goes so far as to say that my reading is "hasty and likely erroneous."  I won't go that far in critiquing Aftergood's reading, rather I think the fact that we disagree about this highlights the problem with the rule and the need for clarity (a point echoed by Robert Chesney here).  

To the substance.  Aftergood first argues that a change in wording from "Opinions (which 'must' be reviewed)" to "an 'order, opinion, or other decision' (which 'may, as appropriate' be subject to review)" somehow doesn't mean exactly what it says.  His argument is premised on the fact that the mandatory "must" language was changed to the discretionary "may" language for not only "opinions" but also "orders" and "other decisions."  On it's face this change in language modifies both the discretionary nature of the review and the scope of the review.  Basic canons of statutory construction reinforce this point, as the Supreme Court has said:

"...in interpreting a statute a court should always turn first to one cardinal canon before all others. . . . [C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last, judicial inquiry is complete.’” (Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992)). 

There's not much less unambiguous than the distinction between may and must.  Granted, it's not the legislature we're dealing with here, but the same rule of construction should apply.  Even more on point, specifically with regard to the word "may" in a review process, the Second Circuit has held that “The use of a permissive verb — ‘may review’ instead of ‘shall review’ — suggests a discretionary rather than mandatory review process.” (Rastelli v. Warden, Metro. Correctional Center, 782 F.2d 17, 23 (2d Cir. 1986).) 

Now, I admit that the change in language may result in an absurd reading when applied to scheduling orders and other minutiae, but it's discretionary as to both, so the absurdity argument doesn't apply.  What's absurd (in the ordinary sense of the term) is that Executive Branch review is also discretionary as applied to opinions, which are my central concern (although I imagine some orders may also have information which the Executive Branch may want an opportunity to review before publication).  I'll concede Aftergood's best point, which is that the Executive Branch doesn't need to review scheduling orders.  That still doesn't change the fact that the plain text of the proposed rule shifts a mandatory review by politically accountable officials to a discretionary review by unaccountable officials.  A judge who was inclined to favor disclosure and transparency over secrecy may read the rule in the exact way that I'm reading it.  Unclear rules lead to uncertain results, and when dealing with matters of national security I see this rule change as an unnecessary risk.  Once information is released there is no way to pull it back, and that's why I favor keeping the rule mandatory.  Contra Aftergood's suggestion, my concern is not "scheduling matters" and "page limits" rather my concern is (as I stated in my prior post) to ensure that every opportunity to catch a mistake is undertaken.  That may not favor the end of immediate transparency (a sometimes laudable goal which Aftergood has advocated for), but it does favor national security.

Let me end on this point.  If reasonable people like Aftergood, Ambinder, and I can disagree on the meaning of this rule change, I imagine reasonable judges and Executive Branch officials could also disagree.  That is why the rule should be clarified.  Rather than arguing over the meaning of "may" and "must" the FISC could make the following changes:

For opinions, maintain the existing language "Before publication, the Opinion must be reviewed by the Executive Branch..." 

For orders and other decisions the Court should place a 72 hour (or some other reasonable period of time) embargo on publication, with automatic publication at the end of the period unless the Executive Branch makes a request to the contrary. 

This proposal clarifies the meaning of the rule and strikes an appropriate balance between national security and transparency. 

PRIOR RELATED POST:  New FISC Rules of Procedure

The Silent Prosecutor: When DA's Refuse to Talk to the Media

It looks like I'm getting to substance more quickly than I expected.  I received a call from a reporter today on a legal ethics issue, I'd love to hear comments from the collective wisdom of the blogosphere.

Here are the facts: 

A District Attorney in California has announced that he will no longer return calls from the media or offer public information about pending cases.  The DA claims that media sensationalism in two high profile cases forced a change of venue and his new media policy. 

The reporter wanted to know:

1. Can the DA decide to not talk to the press?  
2. Is the prosecutor obligated to disclose public information?
3. What are the ramifications of this policy?
4. What recourse does the media have?
5. What can the voters do?  

My sense of this is that the prosecutor is on very firm ground.  As most of us know, the criticism that we more frequently hear is that prosecutors are undermining a fair trial by arguing the case in the media.  So from the perspective of fair administration of justice, this could be deemed commendable conduct.  The critique here seems to be grounded in open government principles.  Let me start with the ethical issues. 

First, recall what Justice Holmes wrote over 100 years ago:  "The theory of our system is that the conclusions to be reached in a case will be induced by evidence and argument in open court, and not by any outside influence, whether of private talk or public print."  Patterson v. Colorado, 205 U.S. 454 (1907).   This theory, or principle informs a prosecutor's decisions to speak to the media and protects a defendants rights by ensuring the case hinges on the evidence, not sensationalism. 

Second, it's ethical for a prosecutor to not speak to the press because it's a fairly well settled principle that publicity has an adverse impact on jurors who may try and conform their verdict to public sentiment, rather than the law.  Moreover, in jurisdictions with elected judges, those judges may (improperly) worry about elections or future judicial appointments, especially in high profile cases.   A prosecutor who refuses to talk about pending cases makes it less likely that the case will receive detailed press coverage by not feeding the fire of speculation and arm chair quarterbacking that seems to surround high profile cases.  (Although the unique nature of the prosecutor's silence may ---at least in the early stages of the policy---generate more scrutiny, rather than less). 

Third, witnesses may be hesitant to testify if there is a lot of media attention or they may reassess or even change their testimony in light of other information they hear or read about the trial. 

Separate from these policy considerations and value judgments are rules governing attorney conduct.  The Model Rules of Professional Conduct, Rule 3.6 which is substantially similar to California Rule of Professional Conduct 5-120, Trial Publicity directs (I'm paraphrasing throughout this post) that a lawyer "who is participating or has participated in the investigation...of a matter" may not make out of court statements that the lawyer knows will have a likelihood of prejudicing the case.  This doesn't prevent the prosecutor from making statements, but it does inform the prosecutors judgment in what to say if he or she chooses to speak.  Furthermore, the rules explicitly allow (but don't require) attorneys to make statements in seven circumstances. 

The prosecutor may make statements about:

1. the claim, offense or defense involved and the identity of the persons involved
2. info in the public record
3. the fact that an investigation is in progress
4. the schedule of the investigation and trial
5. the fact that assistance in obtaining evidence or information is needed
6. a warning of danger concerning the behavior of a person involved, when there is reason to believe there is a risk of harm to the public or an individual
7. the prosecutor may also release info related to:  i) the identity, residence, occupation and family status of the accused; ii) if the accused is at large, info needed to apprehend that person; iii) the fact, time and place of arrest; iv) the identity of investigating and arresting officers or agencies. 

On the flip-side, the commentary to the Model Rules also state what are essentially "no go" statements that are "more likely than not to prejudice" a criminal case.  Those are statements about:

1. the character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness, or the identity of a witness, or the expected testimony of a party or witness;
2. the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission, or statement given by a defendant or suspect or that person's refusal or failure to make a statement;
3. the performance or results of any examination or test or the refusal or failure of a person to submit to an examination or test, or the identity or nature of physical evidence expected to be present;
4. any opinion as to guilt or innocence of a suspect
5. information that the lawyer knows or should know is likely to be inadmissible if disclosing it would prejudice an impartial trial;
6. the fact that a defendant has been charged with a crime, unless there is included therein a statement explaining that the charge is merely an accusation and the defendant is presumed innocent until and unless proven guilty. 

Ultimately I told the reporter that it seems that the ramifications of this policy are more fair trials and a lot more work for members of the media, and the only critique is grounded in open government principles.  (I'm guessing he didn't like that comment).  The media does not have much recourse other than critiquing the policy on the grounds that this is contrary to principles of accountability and transparency.  However, the needs for open government do not outweigh the defendant's right to a fair trial.  Of course, the voters can exercise the greatest influence over the DA's judgment by voting him out of office, or making such an issue of this that he rethinks his self imposed gag order.  But short of those democratic means of persuasion, I don't see much that supports the media's case. 

Am I missing something here? 

 

Criminal Justice System Readings

For those who might be looking for books to assign to new law students interested in getting some accessible background perspectives on the criminal justice system, I would recommend two recent publications of the New Press.

The first is Let's Get Free by Paul Butler.  Butler is a prof at GW Law and has previously been a federal prosecutor.  He provides interesting perspectives on the criminal justice system both from the point of view of a federal prosecutor and as an African-American.  The book is short and accessible and can easily be read in a day - it's actually kind of hard to put down.  It's a great introduction to racial issues in the system, how new technologies might impact on future criminal processes, and what criminal procedure might learn from Hip Hop culture.

Another good book is Lynn Powell's Framing Innocence.  This is an account of a situation some years ago in Ohio where criminal (child pornography) charges were brought against a woman, Cynthia Stewart, who had taken nude photographs of her 8 year old daughter in the bathtub.  The book is written by Stewart's friend and neighbor, Lynn Powell, who conducted detailed interviews with many of those involved in the proceedings.  Again, this is an easy read that is hard to put down.  It shows up issues inherent in the criminal justice system and Child Services system involving family law, constitutional law and criminal law - and addresses the difficulties of fairly enforcing criminal laws based on "community standards" of unacceptable behavior.

Both of these books look at the law and legal processes from different perspectives and both would be engaging reading for those embarking on a legal career.