During the course of the government’s aborted attempt to force Apple to create a backdoor to access the San Berdoo shooter’s iPhone, the geeks kept muttering under their breath, “WhatsApp.”  They weren’t crazy. This time.  It just wasn’t the issue on the table at the moment. Focus isn’t their strong suit.

But now that the government has pretended to have cracked the iPhone problem, in the face of a potential scorched earth ruling like the one they were handed in Brooklyn, with tons of people arguing that they were full of shit and only a handful of Nancy Grace fans thinking that Jim Comey and Cy Vance were particularly handsome devils, the heat is off Apple. The time has come to consider the next new thing in encryption.

Mountain View is home to WhatsApp, an online messaging service now owned by tech giant Facebook, that has grown into one of the world’s most important applications. More than a billion people trade messages, make phone calls, send photos, and swap videos using the service. This means that only Facebook itself runs a larger self-contained communications network. And today, the enigmatic founders of WhatsApp, Brian Acton and Jan Koum, together with a high-minded coder and cryptographer who goes by the pseudonym Moxie Marlinspike, revealed that the company has added end-to-end encryption to every form of communication on its service.

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Her lawyers argued that it would be too traumatizing to subject “Jackie,” if that’s really her name, to a deposition.

Lawyers for the former student, identified in the magazine only as Jackie, argued that having to relive the ordeal could traumatize her again. But the woman is a key figure in the lawsuit by Nicole P. Eramo, an associate dean, who says she was portrayed as the “chief villain” in the 2014 article.

Relive what ordeal? The one she lied about. The one that happened in her fantasies? The one she used to bootstrap her banal existence into national fame? Then notoriety when it was revealed she was a liar? That ordeal?

The good news was that the judge rejected the argument as a blanket justification to prevent her from being deposed. Continue reading →

It would be a wonderful world if skin color played no role in perception.  Some feel that should be the case, and if so, it comes at the price of innocent black defendants going to prison.  You see, reality doesn’t always comport with the world as we wish it was, and one piece of that ugly reality is that white people struggle to differentiate black faces.  Get over it.

“The vagaries of eyewitness identification are well-known” and “the annals of criminal law are rife with instances of mistaken identification.” United States v. Wade, 388 U.S. 218, 228 (1967). In recent years, the legal and scientific communities have recognized the particular risk of mistaken identifications, and therefore convictions of the innocent, posed by cross-racial identifications in which the identifying witness and the suspect arc of different races. In 2014, the National Academy of Sciences reported that “cross-racial (mis)identification” accounted for “42 percent of the cases in which an erroneous identification was made.” Identifying the Culprit: Accessing Eyewitness Identification at 96 (The National Academies Press, 2014). Over 40 years of robust research have now documented the significant difficulty individuals have in discerning between, and therefore accurately recognizing, the faces of people of a different race from their own.

This comes from the summary of argument in the defendant-appellant’s brief in People v. Boone, coming before the New York Court of Appeals.  The issue in the Brooklyn case arose when Acting Supreme Court Justice Vincent Del Giudice refused to charge the jury as to cross-racial identification.

The defendant, Otis Boone, is black, and was convicted of two counts of first degree robbery and related offenses, street muggings that lasted one minute, based upon single witness identifications by white victims.  Defense counsel requested that the court charge the jury, per the Criminal Pattern Jury Instructions on single witness IDs. Continue reading →

When Dan Solove wrote The Future of Reputation, it was a warning.  If you want to maintain your privacy, then keep your information private. But that’s hard work. It means not being able to do anything you want to do, because we’re entitled to do so. It means we don’t get to display our lives on Facebook and Twitter, gather up our likes and followers, then scream about how others have invaded our privacy for taking notice.

After all, don’t we have the right, the entitlement, to be fabulous in public while simultaneously controlling our public personas and denying its use when it’s not to our liking?  Why no. No we don’t.

So why does an op-ed by Robert Levine appear in the New York Times arguing that we can have it both ways?

What we really need are more nuanced laws that can safeguard privacy in the digital age. Courts in the United States have held that public figures are less entitled to privacy than the rest of us. But the Hogan case became less about who’s a public figure and more about the ways in which the Internet has allowed our private information to be made public in ways we didn’t intend.

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The cry was that Woodrow Wilson was a racist, and so his name should be removed from the wall of Princeton’s school of public and international affairs.  A committee was formed, and Princeton’s president, Chris Eisgruber ’83, just released this email:

Last fall, a trustee committee began examining how Princeton should recognize Woodrow Wilson’s legacy.  The committee convened in the wake of a student protest at Nassau Hall that called attention to Wilson’s racism.  It has now issued a report, which the Board of Trustees has approved.  The report is thorough and perceptive, guided by humane values, and candid in its recognition of this University’s failings and of the importance of making a “renewed and expanded commitment to diversity and inclusion at Princeton.” I concur fully with the committee’s analysis and recommendations, and I hope that all Princetonians will read its report and the news release about it. Continue reading →

Historically, most lawyers of my generation were taught the same curriculum, using the dreaded Socratic method that kicked our butts, toughened us up so we wouldn’t cry when a judge muttered “denied.” From what I read, things are very different now. It’s not just the “Law and ______” vanity courses, used to rationalize a lawprof’s scholarly interests, or the elimination of core curricula like Evidence.  It’s the freedom to decide what skills future lawyers need.

A criminal procedure class that reflected our mass incarceration system might begin with plea bargaining (the outcome of 94%-97% of our criminal cases), defender overloads, prosecutorial discretion, then focus on sentencing, and then spend much of the rest of the class on prison conditions, parole, probation, recidivism, and collateral consequences.  While I mention those issues as aspects with the system (and problems with the system), I do not teach them as the system.  In fact, I teach them after all of the procedural and constitutional protections that make up only a small fraction of the current criminal justice process.

So my question to the criminal justice professors reading, do you teach the criminal justice system “as it is,” or do you teach it “as it should be” (or perhaps was at one point)?  Do you teach the distorting impacts of mass incarceration, and how?

There is no denying that the vast majority of criminal cases end with plea bargains. There is no denying that the system produced mass incarceration. So Andrew Guthrie Ferguson asks whether that’s what should be taught law students in their Criminal Procedure class. Continue reading →

Mention “sexual predator” and images of someone sitting on a park bench, eyeing little girls with bad intent, immediately come to mind. But then, that’s whom they want you to picture, because that’s the evil-doer for whom laws like the sex offender registry are intended. Not the 11-year-old boy caught in its web.  See how the mind plays games?

And then there’s teen sexting, one of those really poor ideas that has nonetheless caught fire, kids being kids, and which lovers of criminalization refuse to condemn, despite the natural and obvious consequences. Caught between inconsistent arguments of gender politics, they thread the needle between sexual agency, the right to do stupid things, and victim blaming, that no one is responsible for doing stupid things. The upshot is to criminalize the outcome, since someone must pay.

Amy Adele Hasinoff, in a New York Times op-ed, writes about the unanticipated criminal, the sexting teen.

TEENAGERS who sext are in a precarious legal position. Though in most states teenagers who are close in age can legally have consensual sex, if they create and share sexually explicit images of themselves, they are technically producing, distributing or possessing child pornography. The laws that cover this situation, passed decades ago, were meant to apply to adults who exploited children and require those convicted under them to register as sex offenders.

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District of Massachusetts Judge Dennis Saylor was patient and thorough.  With an opinion running 89 pages, maybe a little too thorough.  When a judge finds it advisable to include a table of contents in a decision, one begins to curse the creation of word processing software.  If the Supreme Court could decide Brown v. Board of Ed. in 12 pages, well.

To save you from reading the first 60 pages, the short story is that there was a sexual relationship between two gay men that eventually ended. A couple years later, after one took a university “sexual assault training course,” he decided he had been raped.  The “victim” submitted his two sentence complaint:

Starting in the month of September, 2011, the Alleged violator of Policy [John] had numerous inappropriate, nonconsensual sexual interactions with me. These interactions continued to occur until around May 2013.

Brandeis cranked up its finely tuned disciplinary machine, carefully crafted in 2014 to comply with the outcome demanded by the Department of Education, Office of Civil Rights, and branded the accused a sexual predator.  As Judge Saylor explains, the disciplinary mechanism had few moving parts: Continue reading →

There is a twitter account called @StopTrumpAtEmory making moderately ridiculous demands. I’m assured by a reliable source that it’s a parody account, but Poe’s Law applies.  Some “demands” are obviously satirical, but other demands are in earnest. If one was to craft a parody of the absurdity of student demands, it would look much like marginalized and oppressed students of Harvard Law School.

What stands out is that students are making demands. Demands? By what power do they think they are in a position to make demands? There is the tacit “or else” that floats behind a demand, that if you fail to accede to a demand, there will be a consequence.  Do the students at Harvard Law School think that if they don’t get their way, Harvard will fall into the Charles?  Lose its panache? Burn through its endowment until it goes bankrupt?

What, kids? What power do you have to back up your demand? What is the “or else” if your school, your dean, your professors, your mommies, just say “no”?

The answer, of course, is that they believe in the righteousness of their cause, and the tacit threat is to reveal that their schools, deans, professors and mommies are racist, or sexist, or enablers, or whatever bad word applies. The students’ clout comes from their self-assessed authority to deem whomever fails to comply the appropriate flavor of evil. Continue reading →

Sit down, Harvard Law School students. I have something to tell you, and it’s going to make you sad. You are privileged. You are as privileged as it gets. Maybe your parents, your friends, your relatives, suffered from racism, sexism, whatever -ism gets your motor racing, but not you.

You beat the system. You will graduate from Harvard Law, provided you don’t fuck it up along the way, and the world will be your oyster. You will have a job. Not just a job, but a job that will pay you oodles of money, far more than you’re worth, if you decide to go in that direction.

If you want to change the world, you’ll get a job doing whatever flavor of social justice tastes good to you. Or a clerkship! And maybe, just maybe, you will find yourself in front of the Senate some day explaining how baseball works.

Whatever. You won. You got the brass ring. You are privileged. Continue reading →