Oct 312009
 October 31, 2009  Posted by  Breaches, Featured News, Govt, U.S., Workplace

Ellen Nakashima and Carol D. Leonnig report:

House leaders on Friday called for an “immediate and comprehensive assessment” of congressional cybersecurity policies, a day after an embarrassing data breach that led to the disclosure of details of confidential ethics investigations.

Speaker Nancy Pelosi (D-Calif.) and Minority Leader John A. Boehner (R-Ohio) said they had asked the chief administrative officer of the House to report back to them on the policies and procedures for handling sensitive data as a result of the breach. The inadvertent disclosure of a House ethics committee document, obtained by The Washington Post, summarized the status of investigations into lawmakers’ activities on subjects such as influence peddling and defense lobbying.


In the breach, the report was disclosed inadvertently by a junior committee staff member, who had apparently stored the file on a home computer with “peer-to-peer” software, congressional sources said. The popular software allows computer users to share music or other files and is easily available online. But it also allows anyone with the software on a computer to access documents of another user without permission, as long as the users are on a file-sharing network at the same time.

Read more in the Washington Post.

Oct 312009
 October 31, 2009  Posted by  Surveillance, U.S.

Scott Michelman, staff attorney for the ACLU, has an article (pdf) in the current issue of UCLA Law Review. Here’s the abstract:

The nature and scope of new government electronic surveillance programs in the aftermath of September 11 have presented acute constitutional questions about executive authority, the Fourth Amendment, and the separation of powers. But legal challenges to these new surveillance programs have been stymied—and decisions on the merits of core constitutional questions avoided—by court rulings that the challengers lack standing to sue under the Supreme Court’s 1972 decision in Laird v. Tatum. Last year, Congress amended the law governing foreign intelligence surveillance; the law has been challenged in court, and once again the issue of the challengers’ standing is at the heart of the case.

In light of the fundamental civil liberties and separation of powers questions that remain unanswered, it is vital to identify who, if anyone, has standing to challenge government surveillance. Unfortunately, the law of standing in the surveillance context remains murky and in important respects appears out of line with the larger body of standing jurisprudence. In some cases, courts impose on surveillance plaintiffs a stricter test for probabilistic injuries than exists in the rest of standing law; in other cases, courts do not recognize as injuries the significant chilling effects a broad and secretive surveillance program can create. This Article argues that the divergent strands of jurisprudence interpreting Laird can be synthesized with general principles of standing law into a coherent and workable doctrine that will open the courthouse doors just wide enough to permit courts to adjudicate the crucial constitutional questions presented by new and emerging regimes of government surveillance.

Hat-tip, Concurring Opinions.

Oct 312009
 October 31, 2009  Posted by  Misc, U.S.

Thomas P. Crocker has an article (pdf) in the current issue of UCLA Law Review.  Here’s the abstract:

This Article explores a conflict between the protections afforded interpersonal relations in Lawrence v. Texas and the vulnerability experienced under the Fourth Amendment by individuals who share their lives with others. Under the Supreme Court’s third-party doctrine, we have no constitutionally protected expectation of privacy in what we reveal to other persons. The effect of this doctrine is to leave many aspects of ordinary life shared in the company of others constitutionally unprotected. In an increasingly socially networked world, the Fourth Amendment may fail to protect precisely those liberties—to live in the company of others free from state surveillance and intrusion—the Constitution should protect. Against the background of the third-party doctrine, we guarantee our privacy only by avoiding ordinary acts of interpersonal sharing. By contrast, the Court in Lawrence explains that intimate conduct occurring within protected personal relationships constitutes a private sphere wherein government may not intrude. Because the third-party doctrine views privacy narrowly, this Article develops a framework for revising Fourth Amendment jurisprudence in light of Lawrence’s protection for interpersonal liberty. By following the lessons of Lawrence, this Article proposes a way to reorient Fourth Amendment jurisprudence away from its focus on privacy in order to protect interpersonal liberty.

Hat-tip, Concurring Opinions.

Oct 302009
 October 30, 2009  Posted by  Court, Online

Matthew Nied, a law student at the University of Victoria, writes:

A recent case illustrates that American jurisprudence is increasingly coalescing around a uniform approach to determine whether a plaintiff may compel the disclosure of an anonymous defendant’s identity in internet defamation cases. As discussed below, the Canadian experience has been different.

In Swartz v. Does (“Swartz”) (see: judgment) a Tennessee state court held that plaintiffs were entitled to discover the identity of an anonymous blogger that published allegedly defamatory statements about them. The case arose when the plaintiffs subpoenaed Google, the parent company of the blogging service used by the anonymous defendants (see: news article).


Swartz is yet another American case that has followed the increasingly prevalent Dendrite standard. Unfortunately, Canadian jurisprudence has yet to begin coalescing to the same extent.  The scarce Canadian law on this issue, most of which comes from Ontario, indicates that plaintiffs have two ways to compel online service providers to reveal the identities of anonymous defendants….

Read more on Defamation Law Blog.