When the House Judiciary Committee held hearings on the Computer Fraud and Abuse Act, and whether common terms of service violations should give rise to criminality, George Washington Law Professor Orin Kerr was asked to testify. He was the perfect choice, having been deeply involved with the CFAA for years. Plus, he’s a lawprof and the CFAA is, well, a law.
But what if it was some sociology professor instead? You know, some soft discipline, related only by tangential concern and whose views are, essentially, no more insightful than some arbitrary guy on the street? Meh, you say. Who would possibly care? Given the Academy’s latest infatuation with interdisciplinary approaches, reflecting the elevation of collaboration over relevant contribution, it’s likely that a lot of people would care.
Take CNN, for example, who provided a bully pulpit to George Washington Professor Amitai Etzioni to opine about the constitutionality of GPS tracking in United States v. Jones, argued before the Supreme Court on November 8th. His credentials aren’t exactly chopped liver:
Amitai Etzioni is a sociologist and professor of international relations at George Washington University and the author of several books, including “The Limits of Privacy.” He was a senior adviser to the Carter administration and has taught at Columbia and Harvard universities and the University of California, Berkeley.
Certainly, Etzioni has the cred to offer a meaningful opinion, right? Notably, the contrary point of view is offered Catherine Crump, a “staff attorney with the ACLU,” not nearly as impressive, although certainly more qualified.
So what does our scholarly sociology geek Etzioni have to offer?
The intense debate the case has already elicited among legal scholars, civil rights and libertarian activists, and those particularly concerned with public safety and national security is largely focused on the question: what would the Founding Fathers have said about the case? As I see it, at least equal weight should be accorded to the question: How well are our public authorities doing in their dealings with criminals? Who needs more tools and who should be denied access to cyber-age technologies if we are to keep a balance between our profound and essential commitments to privacy as well as our security?
Really? It’s not exactly clear that the legal world is obsessed with what the Founding Fathers thought about GPS, considering that it would have been pretty painful for the horse had they been attached. But is there any rational basis to suggest that alternative to constitutional concerns is what makes law enforcement easier? So a sociology academic says.
But Etzioni has some additional insight on the Constitution, and this is a great opportunity to get it out:
To argue that the preceding data show that the government should be given some more leeway is not a violation of the Constitution, but directly sanctioned by it. Unlike the First Amendment, which is worded in absolute terms — “Congress shall make NO law” — the Fourth Amendment bans only unreasonable searches. That is, it recognizes that there is a whole category of searches that are fully legitimate and violate no one’s rights.
As to what is reasonable, it obviously changes with the circumstances. Given that criminals can use freely all the new technologies — including of course GPS trackers, smartphones and spyware — it seems eminently reasonable that the police should also be able to use some of these, especially in public spaces, in which people have no expectation of privacy (or at least should not have one).
Bet you thought the 4th Amendment left it to neutral magistrates to determine whether a search is reasonable, but not according to sociology dogma, apparently. And need we even consider his assumption that the comparison of reasonableness is between the cops and criminals, because nobody would ever search and seize a non-criminal. Do you get the sense that if someone posed that question to Etzioni, his reaction would be “why would they care, since they have nothing to hide?”
Etzioni’s screed is replete with dumb and dumber ideas about the law, but it’s hard to hold him accountable for being ridiculously ignorant. After all, he’s not a lawyer. He’s not a lawprof. He’s a sociology professor. What being a sociology professor has to do with getting a major news outlet to provide him with the ability to spew his opinion isn’t at all clear, but they put him on the soapbox and let him scream.
The point isn’t that clueless people aren’t allowed to think they have an idea worth expressing, even though I’m not of the view that everyone is entitled to an opinion. Sure, they may have one, but that doesn’t mean they have a basis for it. The point is that someone at Cable News Network decided that the mere fact that Etzioni is a professor of something at George Washington University is a good enough reason to offer him the soap box. He’s a scholar! Woo hoo! He must know stuff, so let’s give him some play.
From the perspective of somebody at CNN, who was told to go out and find somebody who would write something about United States v. Jones in support of the government’s position, any seemingly credible source would do. If you’ve ever watched the media make sausage, you know how little they either know or care about the competencies and value of an opinion. They need to fill airtime and white space with someone who comes off to the public as somewhat credible. Beyond that, they couldn’t care less. Sorry if you thought that call from GMA meant you were now a recognized national expert on something. Truth is, it just means the guy they really wanted didn’t answer the phone, so they went down the list until someone did. You won.
The problem is that the vast majority of the public won’t realize that someone with impressive credentials like Etzioni, who may be the smartest guy in town when it comes to sociology, doesn’t know squat about the law. The problem is that anyone who reads this nonsense will be stupider by the end than they were in the beginning. The problem is that he’s a professor, a scholar, an academic, and therefore has attributed credibility which means he must know what he’s talking about.
And if you think lawyers are media whores, never turning away a chance to get their made-for-radio puss on the screen, scholars are worse, even when the subject has nothing to do with their area of academic expertise. And people pay attention, because he’s a scholar.
H/T Radley Balko