Announcements of the latest and greatest tool for detecting deception have become relatively routine,  Indeed, I received another email just yesterday from a psychologist asking “whether body language, voice stress analysis, and layered voice analysis are accepted in criminal trials as methods that are reliable and valid ways to determine “deception” or “lying?”  The concern here was about the media coverage of an investigator using layered voice analysis on HaLeigh Cumming’s step-mom, and the media’s public promotion of the idea that there are valid methods of determining deception.  The suggestion, I guess, is that it’s lawyers who are preventing valid scientific method from being used in the courtroom.

There’s no reason to explain, yet again, the dangers of junk science.  There’s no reason to explain why methodologies that are less than accurate are inherently dangerous.  But there’s good reason to be aware of the fact that there are many out there promoting the notion that the tools for “greater accuracy and objectivity in law enforcement deception detection (note that it’s to benefit law enforcement, not justice)”  exist. 

My concern is it’s just a matter of time before the next round of junk science infiltrates the courtroom.  As lie detection methodologies are developed and promoted, as with this press release, combined with such popular nonsense as the TV shows like  Lie to Me* and CSI, some judge somewhere is going to hold a Daubert hearing and announce that the Holy Grail has been found. 

Science is a wonderful thing.  Unfortunately, junk science is far more pervasive.  And as we are painfully aware, its employment to remove the burden from a jury of having to decide issues of fact and providing them with what facially appears to be conclusive proof has done enormous harm to many innocent people.  And yet it keeps coming.

I believe that the court used too low a standard in revealing the blogger’s identity.  The court ordered Google to reveal the anonymous blogger because “a strong showing that a cause of action exists.”  This standard appears to be little more than requiring the plaintiff to survive a motion to dismiss.  While I’m very sympathetic to people who have been injured through online defamation and invasions of privacy, I’m also wary of courts being too quick to reveal the identities of bloggers.  I believe that in order to reveal a blogger’s identity, plaintiffs must meet the summary judgment standard, as set forth in Doe v. Cahill, 884 A.2d 451 (Del. 2005).

Because, of course, the flip side of anonymity is that it can open the door to uniquely problematic personal attacks. This problem is set out in Danielle’s article Cyber Civil Rights, where she examines cases where anonymity was used as a shield to allow malicious online mobs to harass innocent victims, who tend to be disproportionately female. (And of course, the privacy sword cuts both ways here as well — it is a rather egregious invasion of privacy for a normal person to have their private life attacked on a blog.)

Frankly, Skanks in NYC doesn’t look like a set of Publius-esque words that deserves protection for anonymity. It does not match any of CyberSLAPP’s examples of helpful anonymity. Instead, it looks exactly like the many cases of anonymous and gendered personal attacks, like Autoadmit and Kathy Sierra attacks, which Danielle rightly labels destructive: Online attacks, often sexually framed, which targeted the personal well-being and careers of their disproportionately female victims.

From Turley, Memphis has rejected a request by Police Chief Elena Danishevskaya to arm her police officers with Tasers.  From the Voice News :

Following my efforts to draw out shy and reticent lawprofs, like Dan Solove, to join in a broader conversation that will do little to enhance tenure opportunities but may well result in a benefit by advancing legal thought (yes, I haven’t given up yet on this topic despite Dan’s reluctance to jump into the trenches), comes Judge George Wu’s decision in the Lori Drew case, officially dismissing the misdemeanor conviction under the Computer Fraud and Abuse Act.

Judge Wu’s decision goes to great lengths to parse the language of the CFAA, and does so with reference to a number of law review articles, foremost of which is Orin Kerr’s Cybercrime’s Scope, 78 N.Y.U. L. Rev. 1596 (2003).  Notably, Judge Wu finds many of the older decisions unhelpful, and perhaps out of touch, when it comes to figuring out what the future of cybercrime ought to be, as noted in footnote 21:

Commentators have criticized the legislatures’ understandings of computers and the accessing of computers as “simplistic” and based upon the technology in existence in the 1970’s and 1980’s (e.g. pre-Internet) rather than upon what currently exists. See, e.g., Kerr, Cybercrime’s Scope, 78 N.Y.U. L. Rev. at 1640-41.

As one reads the decision, particularly in the context of the developing caselaw relating to computer searches and crimes, it’s impossible not to appreciate how true this is.  Judges are, to be blunt, the last people one would want defining the parameters of the law relative to technology or the internet, given how limited their understanding of it is.  The corollary is that they are constrained to rely on law review articles in this developing area, and the law is being crafted by judges who can’t tell Youtube from Twitter and lawprofs. 

Judge Wu held that using a websites clickwrap terms of service as the basis for a crime is unconstitutionally vague, both from the public notice side (since no one must, or wants to, read the clickthrough terms) and from the objective limits on law enforcement side.  Enter Dan Solove, who posts that this has been his position as well:

The Lori Drew case has finally been decided.  Background about the case is here.  In previous posts ( here and here), I argued that the CFAA should be held to be unconstitutionally vague.

In an opinion released on August 28, Judge George Wu struck down, on unconstitutional vagueness grounds, the prosecution’s attempt to enforce violations of website terms of service as crimes under the Computer Fraud and Abuse Act (CFAA):

[I]f any conscious breach of a website’s terms of service is held to be sufficient by itself to constitute intentionally accessing a computer without authorization or in excess of authorization, the result will be that section 1030(a)(2)(C) becomes a law “that affords too much discretion to the police and too little notice to citizens who wish to use the [Internet].” City of Chicago [v. Morales], 527 U.S. [41] at 64 [(1999)].

One of Dan’s scholarly foci is internet privacy, which puts this right up his alley.  Indeed, his book, The Future of Reputation, which received a very positive review here, will be the standard upon which much understanding of the impact of online privacy will be determined for a long time, and will likely have a significant impact on the developing law as well. 

See where this is going?  For fellow trench lawyers, we cannot afford to ignore the lawprofs because we see them as being too theoretical, too disconnected from the real practice of law.  It is their writings, their thoughts, that will provide the bases upon which our efforts will be judged.  Judge Wu did, and other judges will as well, look to their writings to determine the future of the law as it relates to computers, the internet, and all technological advancements, because these are areas so far outside the courts’ ken that they are finally becoming aware that it can’t be decided using horse and buggy law.

And the problem for us is that the lawprofs are developing their theories, their thoughts, the very foundation that will later come back to bite us in the butt, without us.  It doesn’t matter whether we think they’re brilliant and fascinating, or unrealistic and disconnected.  The fact remains that judges have, and will continue, to look to their work to decide our work.  In the meantime, it would behoove all of us to remember that legal scholarship is not just a game to be played with the winner receiving tenure or perhaps an endowed chair.  It eventually filters down to real life and real people, and impractical or misguided scholarship can do a great deal of harm to many, even if created with the best of intentions.

It’s time that peer review in the area of law be broadened beyond the practical and theoretical camps, and include everyone interested in the subject.  I suspect that Orin came to realize how some of his theories came back to haunt him during his work on behalf of the defense in this case, and perhaps might now wish somebody had challenged his thoughts at the time.  Regardless, we would all do better to hash it out now rather than end up with fascinating theories that put people in prison for the wrong reasons.

And just because things worked out for Lori Drew this time doesn’t mean everything will be fine the next time.  Technology is still developing, and judges are still judges.  Those of us in the practical blawgosphere need to engage with the lawprofs.  And those shy lawprofs need to come out of hiding.

Update: I’ve received a private email from Dan Solove, which will put to rest my poking him on the subject of cross-discussion.  Suffice it to say that Dan doesn’t see the divide between practitioner and professor that I do, and in any event feels that my tone has been so disrespectful that he doesn’t care to engage in further discussion with me.  That being the case, I will respect his wishes and leave this issue behind.

During my relative absence from the blawgosphere, I noticed some action in an old post about window tint, a sore spot for many New York drivers who learned that a foolish law, enforced for dubious reasons that bore little relation to any legitimate purpose, received some interest.  It gave rise to some concerns.

The comments reflect the anger of regular folk to this ill-conceived law and its even worse-conceived application, and offer the ideas of commenters on how to address them.  They are bad ideas.  Some extremely bad, to the point of being dangerously foolhearty.  At the time they were posted, I chose to allow people the catharsis of expressing their frustration.  Everybody needs an opportunity to vent, and this was as good a place as any.  But it struck me that some readers, and this post still gets quite a few hits on a regular basis, will perhaps wrongly assume that because this is a law blog, that the content of the comments has some merit.  They don’t.

This is not a concern about any potential liability I may have for providing space for bad advice.  I have none, thanks to Section 230, but I am still concerned for the welfare of readers who misapprehend comments left by people who have no greater clue what they are talking about than they do.  Under no circumstances should any reader assume that the “trick” offered by some commenter has any validity whatsoever. 

Indeed, no one should assume that any claims of a successful defense are truthful or accurate.  Comments are not vetted for lies.  It’s awfully easy for someone to write about their stroke of genius and good fortune, and leave others to think they have something to offer.  While they might, they similarly might not.  You can’t tell from the comment, and to accept someone’s claim is to invite disaster.

On a side note, there is an additional concern that merits mention coming from the Window Tint post.  Readers sometimes misapprehend what a blog is.  To the outsider, it’s a public space available via the internet where they are entitled to stake a claim.  It compelled me to remind a reader that she had no proprietary interest in SJ, after she invited another commenter to keep “us” abreast of his situation, and noted that all “we” have is this blog.  I informed her that she has nothing but the opportunity to comment for as long as I allow.  She responded with a typically angry comment about how mean and jealous I am to say such a thing, which I deleted and thereupon banned her from further commenting.

This is not a public square.  You are not entitled to set up your soap box where you want and talk to the gathering throng.  No matter how close you begin to feel with others who share your angst, you do not get to rule the roost around here.  Unless I allow it.  This is not a democracy.  I may be arbitrary and capricious.  I may be unfair.  You may disagree with my decisions with all your heart and soul.  But it’s my choice anyway. 

It’s not my way to delete or ban someone because they disagree with me.  In fact, disagreements are some of the most interesting discussions around.  However, there are things I won’t tolerate, which include (at my discretion and leisure) hijacking comments for readers to go off on a tangent about their personal experiences.  If you want to talk about yourself, start your own blog.  Don’t assume that people read SJ so learn about your personal war stories. 

One commenter, a while back, took issue with my shutting down his unbearably lengthy comments about his own negligible experience touching some tangential point of my posts and expressing his somewhat extreme political views.  After numerous warnings, I tossed him.  He did, however, take my advice to start his own blog where he could write whatever he wished.  He learned that he was talking to an empty room.  It’s a tough lesson to learn that no one really cares what color your boxer shorts are, or how a lawyer who has never tried a case thinks voir dire should be conducted.  Some opinions just aren’t that fascinating or worthwhile.

I am also very intolerant of a commenter who makes nasty comments about other readers or blawgers, particularly those I’ve come to know and like.  Day trippers (people who rarely or never comment) don’t get nearly as much slack as regulars.  This happened over the past two weeks as well, and upset me.  As smart as the commenter thought he was, his bizarre string of comments demonstrated a significant lack of appreciation of how snide he was and how little he was appreciated by others.  Shoot at me all you want, but do not make snide comments about other commenters.  You aren’t special enough to do that.

And a new addition to this list is the commenter who mistakenly thinks that he’s in charge of a post and thread.  No one is entitled to issue invitations or give orders around here but me.  I’ve invited your into my house for a chat.  I ask that you remember that it’s my house.  If you want to control the discussion, you can always start your own blog.  But remember, that doesn’t mean anyone cares what you think or will want to read you.

For the handful who noticed that my posting has been sporadic, it’s because I’ve been off in a far away land, where they speak an unfamiliar language and eat strange and exotic foods.  Most noticeable to me was that all of the children wore white clothing and black masks, and held swords of a particular type and thrust them at each other with great regularity and vigor, while older men yelled things at them in even odder sounding tongues.

But now I’m back.  After swearing a blood oath to never fly Delta Airlines internationally again, losing one of the wheels off the traveling fencing hardshell case, as did everyone who flew Delta, eating the meal of one infinitesimally small piece of amorphous chicken covered in a concealing red sauce with a side of potatoes, all of which was deemed sufficient to cover two independent ordinary meal periods, and a seat distance in front of me that required me to wear my reading glasses to see the seatback movie screen 3 inches from my eyes, I was allowed to touch American soil again.  It’s fun to leave.  It’s good to come home.

Spain is a wonderful country.  The people we met were enormously friendly and welcoming.  No, they service staff were not particularly geared toward service, their primary reaction to all issues being “oh”.  But after a bit, you realize that by reducing ones American-style expectations a bit, on an hourly basis, one reaches European equilibrium and a zone of familiarity.  Then, one can appreciate their charm.

Outside of the hotel, the food was fabulous.  Inside, it was bewildering, as in “what is that?”  When one can’t distinguish fish from lamb, cooked to a savory medium gray, it adds a certain mystery to meals.  But a drink called tinto de verano, the wine of spring, smooths over many culinary issues and produces a joyous celebration of flowing cheap rioja, improved by a lemon and soda water, or as often happened, 7-Up instead when they are moving quickly.

For anyone wondering, there were fencers from Spain, Ukraine, France and the good ol’ US of A at the former World Cup venue in Almeria.  After mixing and matching for ten days, a two day tournament concluded the trip.  The tournament divided the groups into two age groups, akin to what we call cadet and junior here, as well as a world class group made up of national team fencers.   While they all fenced together prior to the tournament, and I was surprised and delighted by how competitive bouts were between national team fencers and some of the younger fencers, the tournament divisions, which of course included separating fencers by gender as well, were intended to fit the normal international competition mold.

After the first day of the tournament, my own tax dedication was the first seed, having demolished his competition by winning every bout and not allowing more than one touche by any fencer against him.  But of course, when things are going too well, it naturally means that they should screech to an immediate halt until the next day.  And so the wind blew.

In his quarterfinal bout on day 2, a fencer named Sasha from the Ukraine cranked up his game above and beyond anything he had shown previously.  With his coach screaming unfamiliar words, which we believed to mean that if he lost he would be sent to the gulag, and his little dog too, Sasha fenced his heart out and the score was tied at the end of regulation time, 12-12.  In overtime, Sasha caught a slight fold in the jacket just enough to compress his tip, and the battle was done.  Mine ended the day in 5th place, which was good but fell short of his hopes.  It was particularly difficult to watch first and second, Sasha having been eliminated in the semifinals when he fell to the floor in exhaustion, both Spanish fencers from Burgos, who mine had beaten handily the day before.

It was a long time to spend away, but a wonderful experience.  Now I have a remarkably long list of things to do, and given that few people will take calls from me at 9 in the morning on Malaga time, only limited time to do them until my clock readjusts.  So for those who kept abreast of my personal details, thank you.  And for those who also followed loftier matters, like law, so much has happened in my absence (which is very wrong, since it was the end of August) and I appreciate how many others posted about these far more significant issue so that I could keep abreast, even from Spain.

And now I’m back.

When the 9th Circuit, courtesy of Judge Alex Kozinski, decided United States v. Comprehensive Drug Testing , they may well have brought the law into the digital age for the first time.  For real.  Orin Kerr at Volokh Conspiracy has done an extraordinary series of posts about the case, its implications, its conflicts, and they are a must read for every criminal defense lawyer.

Being ever helpful, Judge Kozinski has even summarized the new rule:

When the government wishes to obtain a warrant to examine a computer hard drive or electronic storage medium in searching for certain incriminating files, or when a search for evidence could result in the seizure of a computer, see, e.g., United States v. Giberson, 527 F.3d 882 (9th Cir. 2008), magistrate judges must be vigilant in observing the guidance we have set out throughout our opinion, which can be summed up as follows:

1. Magistrates should insist that the government waive reliance upon the plain view doctrine in digital evidence cases. See p. 11876 supra.

2. Segregation and redaction must be either done by specialized personnel or an independent third party. See pp. 11880-81 supra. If the segregation is to be done by government computer personnel, it must agree in the warrant application that the computer personnel will not disclose to the investigators any information other than that which is the target of the warrant.

3. Warrants and subpoenas must disclose the actual risks of destruction of information as well as prior efforts to seize that information in other judicial fora. See pp. 11877-78, 11886-87 supra.

4. The government’s search protocol must be designed to uncover only the information for which it has probable cause, and only that information may be examined by the case agents. See pp. 11878, 11880-81 supra.

5. The government must destroy or, if the recipient may lawfully possess it, return non-responsive data, keeping the issuing magistrate informed about when it has done so and what it has kept. See p. 11881-82 supra.

For anyone in this business, the sweeping breath of this approach is just astounding, which brings me to the only aspect of this decision that Orin has yet to discuss.  A while back, we had a disagreement about whether the 4th Amendment doctrine developed over the past couple of centuries was better applied to  new technology, whether by analogy or directly, or whether the courts needed to develop a new approach to evidence that fell outside the scope of anything the framers, or the courts of the past, had ever imagined would exist.

My argument was that we needed a new approach, largely because the old one is riddled by exceptions that have long ago swallowed the rule, and because the developed law monumentally fails to offer any meaningful protection.  Orin took the approach that we would do better to apply existing doctrine, which he called his “technology neutral approach.”

While I wouldn’t go so far as to say that this decision proves Orin wrong, I would take the position that Judge Kozinski and the en banc 9th has taken my side in the argument, that the old paradigm fails to satisfactorily address protecting the privacy of the individual when we leave the physical aspects of the search in the dust and focus instead on our digitalia, the true content to be protected. 

But before we get too excited by this extraordinary decision, which would likely render every computer search every done unconstitutional, Orin makes a critical point in noting that it may well conflict with new Federal Rule of Criminal Procedure 41, which creates a process that conflicts with the Kozinski rules at critical junctures, and that the Comprehensive Drug Testing decision, if rendered pursuant to the Circuit’s supervisory powers authority rather than as a 4th Amendment doctrinal decision, would be trumped by the new rule, effective December 1st.

Still, that the 9th Circuit has now challenged the tail that wags the dog, at minimum there’s a crack in the door of old school search and seizure doctrine, and now a hope that a little sun will shine through that crack.  Given the significance of digital search for the future, let’s hope that this decision at least gives rise to some thought before the federal courts eviscerate all protections under some new “computer exception” rule that exposes our innermost thoughts to the nearest  flatfoot with a flash drive.  It’s the content, not the container.

My fellow curmudgeon, Mark Hermann, has stolen my newest new word, blogolater.   This comes on the heals of my finally receiving due credit for coining the term Slackoisie in the Urban Dictionary.  The only problem, of course, is that I didn’t actually invent either word, the former having come from Hermann himself and the latter from Dan Hull.  But I’ll take as much credit as I can get since my skills in lexicography are somewhat stilted.

But Hermann’s word refers to the cottage industry of blog support, those folks who provide turnkey blogs, or teach you the twelve rules of blogging, or bring you coffee to celebrate your first blog post.  He came up with this word during his unscientific research into the lifespan of a blog.  It’s now officially twelve hours.  There are 17 million blogs, 52% of which are defunct before the pot of coffee is fully brewed.

Since I’ve enjoyed modest success with Simple Justice, assuming one defines success as getting a few people who aren’t related to read my blawg, I could conjure up some rules that would probably help.  I could make a list, and then everybody would read it because people love lists.  They especially love lists if the name of their blawg is one it.  If I had a blog about cheese, and listed the ten best legal blawgs including Above the Law, I bet that Ellie would write a post about it. 

I won’t write a list, however, as I’m not in the business of telling others how to succeed at blawging.  I do this for self-preservation, as I’ve got more blawg-stuff to read than I can handle already, and I surely don’t need more.  I don’t promote seminars about how to be the next blawgospheric hero.  I see blawgers I’ve never heard of pontificating on how to blawg.  It strikes me wrong, but if that’s what they want to do, so be it.

On the other hand, I do have a few things I see from newbie blawgers that turn me off right away.  The first is the newbie self-proclaimed expert.  Jamie Spencer has a list of new kids on the block, one calling itself Ask the Criminal Law Expert.  Maybe he is an expert.  Maybe he’s not. But I hate it already.  Proclaiming yourself an expert is really tacky.

Most new blawgs are self-promotional, and think that they’re going to impress the crap out of would-be clients who stumble upon it in the search for a home for their hard-earned money.  That’s never worked before, and isn’t likely to work with each new blawg that comes along.  There is almost nothing that guarantees failure more than self-promotion.  Yet this happens over and over.

Then there’s the folks who start up blawgs and say nothing.  Great idea.  Lots of people really want to spend their time reading nothing.  It’s fascinating.  It’s interesting. It’s worthless.  I’ve been accused of being unduly bold in my opinions.  This is a curious criticism, since they’re my opinions and if I didn’t think they were correct, why would I bother to put them out in the blawgosphere?  Plenty of people want to tell me what an idiot I am for having them, so I might as well feel strongly about them before bothering to offer my butt to be kicked.

For better or worse, I have thoughts.  I don’t proclaim myself the expert, as though my opinions are, by definition, the only correct ones, and I may well be wrong about things (though I don’t think so, most of the time).  But at least they are thoughts.  Those who publish wishy-washy, pointless, wiggly commentary either lack the conviction of their beliefs, or don’t actually have any beliefs and just post stuff to keep their blawg alive until they learn that they aren’t going to get rich and famous as a blawger.

The blogolaters won’t tell you this stuff.  They will tell you to post regularly and be interesting and you too can establish a viable presence in the blawgosphere.  But if you don’t really want to be here, then why bother?  As Hermann and I have said before, you aren’t going to hit the bigtime because you have a blawg.  If you aren’t writing because there’s some bone in your head that makes you want to write, then you’re wasting your time.  If you expect something in return, then you’re going to be deeply disappointed.

But as long as you give it a try, you will keep the blogolaters happy.  And they will keep telling you that you too can be a blawgospheric hero.  Maybe a few of their progeny will prove to really have something interesting to say and worthy of your precious time to read.  And that’s all one can ask of the blawgosphere.

Whenever I go away, whether for vacation, conference, trial or otherwise, I make certain that all my cases are fully covered and that my clients know that I will not be at the other end of the phone whenever they call.  It has to be or I would never be able to get away.

So naturally, with minutes of leaving the country, catastrophe strikes at least half of them, demanding my immediate attention. Not quite real catastrophe, but client catastrophe, meaning that they desperately need to ask me a question which is life or death to them at that moment.  Most of the questions require an answer like, “no, it doesn’t mean anything,” after which they sigh and say “sorry to bother you.”

But it’s not my perception of the question, but theirs, that matters.  If it’s critical to my clients, then it’s critical.  And because I’m out of reach, critical questions necessarily arise.  Managing them is all in the preparation.  The preparation is having other lawyers upon whom you can depend available to help you when catastrophes arise. 

This requires two things: First, having lawyers you trust to handle your client emergencies.  Second, having lawyers you trust willing to help you out.  The first is a matter of honest assessment, finding people in whose care you would entrust the people who have put their trust in you.  The second is a matter of mutual survival and generosity.  I take care of them whenever they need my help, and they are there for me when I need theirs.  We are all better off for our support and cooperation.  And we provide each other with a support system that allows us to do things that solos could never otherwise do. 

My phone has been ringing nonstop since I’ve left the United States.  What a surprise.  Usually, the minute I hop on a plane is when a huge new case comes in.  This has become such a cliché that whenever business gets slow, I immediately leave the country to get something new and great.  It always works.  It has yet to happen this trip, but I still have plenty of time and no doubt it will.  Good things always happen at the worst possible times.

When the call comes in, however, I take comfort in knowing that my friends will help me out, cover me, deal with the emergency and make sure it’s there for me when I return.  It’s good to have friends.  It’s better to have friends you can trust to take care of your practice when you’re away.