There’s much to commend dogs.  They make fine pets, if you’re so inclined.  They can fetch dead critters if properly bred and trained.  Some are even considered attractive, in a canine sort of way.  But the mythology that surrounds their ability to sniff out drugs, long vaunted by police and the media to the point of near infallibility has got to go.  Pet them. Love them.  But don’t bet the Fourth Amendment on them.

At Reason, Greg Beato takes on man’s best friend.

When [Jonathan] Huynh was an eighth-grader at Oak Avenue Intermediate School in Temple City, a drug dog picked out his gym locker during a random search. When Huynh returned to the locker room at the end of class, a school administrator opened his locker in front of him and the rest of his classmates. The detection dog immediately lunged for the backpack and took hold of it, but when the administrator subsequently searched it, he found no drugs or other contraband. When the administrator and the canine team left, all the other students started laughing at Huynh. “I felt completely humiliated,” he later wrote on an online message board.

Such incidents have done little to damage the reputation of drug dogs among the animal lovers on the Supreme Court. In the 2005 case Illinois v. Caballes, the Court ruled that a canine sniff for narcotics at a traffic stop was not a search, even when there was no reasonable cause for suspicion. In writing the opinion for the majority, Justice John Paul Stevens further enhanced the power of drug dogs by claiming that even their false alerts are no cause for concern, because no “legitimate private information” is conveyed when they indicate the presence or absence of contraband material.

And who took on this dubious rationale?  None other than former criminal defense lawyers turned Virginia prosecutor extraordinaire, former CLTV star and blawging stalwart, Ken Lammers.

In a 2005 essay for the NYU Journal of Law & Liberty, criminal defense attorney Ken Lammers translated Justice Stevens’ dubious argument into plainer language: “It is as if Justice Stevens had upheld a warrant by arguing: ‘When Officer Smith lied to Judge Jones in order to get the warrant, the lie, in and of itself, did not reveal any legitimate private information, and therefore the warrant is valid.’ ”

There was no slipping any rhetorical nonsense past old Ken.  More to the point was the dog hits simply aren’t anywhere nearly as worthy of credit as courts have held.  Consider whether it would be equally acceptable for a cop to flip a coin in order to establish probable cause to search.  For a dog whose established ability to sniff out drugs runs in the typical 50% range, it’s no more likely to be accurate than a flip of a coin.  And I’m not even going to touch the “tainted money” dilemma here.

Yet the use of dogs as a facile means of circumventing the warrant clause is not only continuing, but eludes meaningful review because of the fact that dog sniffs, for the most part, are either not considered a search or not a sufficiently significant intrusion on privacy to warrant redress. 

In March 2010, the Third Court of Appeals of Texas held that a student who was forced to leave her backpack on her desk for a drug dog to sniff after she and other students vacated the room had not been victim of an unreasonable seizure because that seizure did not lead to a significant invasion of privacy. But a seizure doesn’t have to compromise someone’s privacy to qualify as unreasonable—it just has to be unreasonable. “Consider an officer walking up to you on the street and grabbing your briefcase out of your hand,” attorney Ken Lammers writes in an email to me. “He has seized it, but he has no idea what is inside it and therefore your privacy has not been infringed upon. [But] would a reasonable person believe your constitutional right against unreasonable seizure of your property had been violated? Of course he would.”

The use of drug dogs in schools is becoming increasingly pervasive, and is not only permissible, but implicates no 4th Amendment scrutiny.  This might be less problematic is the dog sniffs were as reliable as fabled, but when intrusive searches are the product of coin tosses dog hits, and are unassailable because of the reliability of a dog alert to establish probable cause to search, we’ve handed over enormous power over our children to a dog.

The rationale behind a dog alert not being a search isn’t quite as nutty as one might think.  if an odor emits from a sealed container, such that it can be smelled by a dog outside the container, then the privacy rights of the person whose container it is isn’t violated.  It’s analogous to putting an odor in plain sight, or speaking loudly enough for others to hear a crime being executed.  It makes some sense, but it similarly depends on the efficacy of the dog.

The confluence of a dog’s lack of mythical powers, the rationale that no privacy interests are violated by the false positive alerts since there are no drugs to be found as a result and the pervasive use of dogs as a quick and easy means of establishing probable cause, serve to make this one of the easiest means of circumventing the 4th Amendment. 

It seems to me that any dog handler with any skill could get his cute and cuddly buddy to alert at will, essentially providing carte blanche to search any darn time he wants.  And there’s nothing anyone could do about it.  There isn’t a judge in the nation who won’t uphold a search on probable cause based upon a dog alert.  Judges love dogs.

But then, no harm can come from a search based on a false dog hit.  Unless, of course, you have an issue with being subject to searches at will, or happen to have something else in your car, locker, briefcase, that you would prefer the cops not see.

H/T Ed. at Blawg Review

It’s like cigarettes causing cancer.  Everybody knew it, and still the tobacco companies denied it and fought it to the death.  Now the obvious has been proved: The New York Police Department has ticket quotas.  I’m shocked. Shocked!

From the Village Voice :

A Brooklyn jury yesterday ruled that ticketing and arrest quotas, long denied by the NYPD, do exist, and left a woman in cuffs after trying to stop her son’s arrest.

In a lawsuit filed by Bedford-Stuyvesant resident Carolyn Bryant, the jury found that the NYPD had a “custom and policy” on arrest numbers which violated her constitutional rights…

Notably, the Voice has had a series, “The NYPD Tapes,” about the 81st Precinct in Bed-Sty, where stop and frisk is generally based on people breathing and walking on the street.  Again, the proof came from inside the precinct.

Key testimony in the case came from Capt. Alex Perez, who told jurors that indeed arrest quotas were key in judging cops’ productivity.

It’s just management.  After all, how else can a supervisor know if beat cops are working or hanging at Dunkin’ Donuts?  There has to be some tangible evidence, like, oh, the issuance of tickets.  Arrests are a little harder to come by, plus somebody could get hurt if they have to run to catch some perp.  Tickets are quick, easy and generally result in a he said/she said dispute where police officers are likely to prevail.  After all, as the argument goes (and has always gone), why would the cop lie?

Now we have the answer.  Because if they don’t make their quotas, the catch it from upstairs, are unlikely to get better assignments or promotions and may well be treated poorly by peers and superiors alike.  Nobody wants to be the goat of the precinct.

The problems arise at the end of the day, or end of the month, when a cop’s numbers are down.  He knows it because his sarge has just humiliated him in front of all the other cops, and told him to get his butt on the street and write.  And so he must.

But there isn’t much to write about, as the natives are behaving well.  Yet there’s some kid in a backward baseball cap with his pants hanging low, or somebody driving a beat up car with darkened windows.  Bingo. And if nobody stands out, there’s always the baby momma with the big hoop earrings and nasty mouth.  Any cause will do, and no cause will do as well.  Just write them up.  There’s no way he’s going back to the precinct without a pocket filled with tickets to prove he’s working.

And the NYPD smiles.  Their cops are hard at work, earning their pay and protecting the citizens of the City of New York from all manner of miscreants.  They’ve got the tickets to prove it.  They remain a vital and necessary force for the protection and service of the law-abiding taxpayers.

So what does the NYPD have to say about this verdict?

Despite the jury verdict, a city lawyer [Zev Singer] told reporters, the NYPD “does not use quotas.”

Does that come in menthol?

Lest one think this puts the question to rest, bear in mind this was a Brooklyn jury, meaning that in the scheme or New York City credibility, it ranks poorly.  This is seen in the balance of the verdict.

Jurors came back with an invalid verdict, deciding there was no false arrest. But they still awarded punitive damages, prompting Bryant to accept a $75,000 out-of-court settlement.

Fuggedaboutit.  It could have been worse, had the case been tried in the Bronx.  For those inclined to wonder about the genesis of the underlying action:

Bryant claimed she was hurt confronting cops who busted her son for drugs. Charges against her were dropped and the drug case against her son was dismissed.

The plaintiff claimed injuries to her neck and knee, and was seeking $5 million in damages.  The settlement amount is about the New York norm for someone unlawfully forced to endure the odor of bad breath on the subway, which Bryant’s lawyer declared to be a “moral victory.” 

But at least the jury of six men found that the New York Police Department uses quotas, as if anyone thought otherwise.

H/T Packratt at Injustice Everywhere

A curious search warrant was granted in Sarasota, Florida, that provided for the search of all persons who entered a parking lot, which the police contend had become a “vibrant open air drug market.”  These things happen.  This is how  Orin Kerr described it:

In Sarasota, Florida, a vacant lot next to an apartment building has become a vibrant open-air drug market. The police are having trouble cleaning it up. So the police tried something they had never tried before: The applied for, and obtained, a warrant to search “all persons” who parked or set foot in the apartment building parking lot.

During the two-hour raid, a dozen people were searched and, even though officers justified the wide search by telling a judge no “innocent persons” congregated in the abandoned lot, only four people were charged with drug crimes. An 80-year-old man was among those detained, then released, during the operation

I suppose the government would argue that this case is unlike Ybarra because the warrant was for “all persons,” not “Greg.” But that theory runs into obvious problems with the facial validity of the warrant. From a particularity standpoint, a warrant “all persons” is as much of a general warrant as you can get for a warrant authorizing a search of persons; and from a probable cause standpoint, I don’t know how the affidavit possibly could have established that there will be probable cause to believe that there is evidence on every particular person who enters a parking lot.

Both Orin and the many commenters at Volokh Conspiracy then pursue a variety of ideas, comparisons, arguments, in an effort to explain or unexplain how this warrant, which gives every appearance of being the despised and prohibits “general warrant”, could be granted.

The discussion goes in many circles, but despite the investment of some very thoughtful people, ends up nowhere.  There’s a very simple reason, I suspect, but it’s one that defies the most brilliant legal minds in the blawgosphere.  The reason this warrant issues is that some judge in Sarasota signed it.

Rarely, and even rarely is likely a gross overstatement, do trial level judges put a great deal of legal thought into what they do.  Some shoot from the hip.  Some shoot with their eyes closed.  Some bear a striking resemblance to  Governor William J. Le Petomane in Blazing Saddles. 

One of the aspects of life in the trenches that one must endure is the ability to smile as a judge issues a decision which is patently wrong.  Things fly fast and furious at times, and decisions are made off the cuff.  While ex parte applications are troubling enough, there being no one to oppose or question the premise, and judges approaching matters with whatever bias they bring to the bench, there is a more basic reality that we face on a constant basis.  Wearing a robe doesn’t make anybody a genius or legal scholar.  They’re just guys like us who wear robes.

Judges often forget this, though that isn’t the reason why they make snap, and grievously wrong, decisions at times.  The nature of the job is to make decisions, and no experienced lawyer or judge presumes that anyone is going to nail it with every decision.  Similarly, some don’t nail it with any decision.  For some judges, their greatest skill is licking envelopes at the political party office and not annoying the party leader.  Getting along is one of the foremost qualifications for being offered a judicial post.

This isn’t offered as a cynical view of the judiciary, but a practical one.  Not all judges are well-suited to the task, and bad decisions happen with unfortunate frequency.  Indeed, that’s why we have appellate courts, to correct mistakes made below.  The problem with appeals, of course, is that appellate panels too often defer or protect their trial level brethren, reversal besmirching their fine reputation.

This hard reality is reflected in the maxim that every defendant is entitled to a fair trial, not a perfect one.  Fair is relative concept, leaving many a defendant shocked at what suffices.  When a lawyer can sleep through portions (not important portions, perhaps, but portions nonetheless) of a capital trial and not be found ineffective, the lack of perfection is driven home.

Back to this warrant, there are many judges who are disinclined to scrutinize the requests of the police too closely, both because they tend to side with the police as a general matter and recognize that most search warrants fall under the no harm/no foul rule.  If a person is searched and no drugs are found, then he’s released to go his merry way.  If a person is searched and possesses drugs, then he’s a criminal and bad warrant or not, deserved to be prosecuted.

Clearly, there is harm to the person who is searched without cause, and there is no shortage of Supreme Court verbiage explaining it.  But that’s mostly ivory tower stuff in the trenches, where judges are well aware that tens of thousands of innocent people are routinely stopped and searched for no particular reason.  Consider the New York City stop and frisk program.  It doesn’t escape the judge’s notice that the cops are searching hundreds of thousands of innocent people who, because there is no charge, will never have the opportunity to complain about it.  It’s just life on the streets, as far as their concerned.

One of the people arrested under this “all persons” warrant challenged the search and seizure.  As one might expect, suppression granted wasn’t the gut reaction.

In court this week, Judge Rochelle Curley upheld the legality of the search warrant. But an attorney for one of the men arrested outside the Mediterranean Apartments has vowed to push the case to the district court of appeal.

Those involved say a decision by the higher court could lead to a new precedent for police searches in Florida, essentially banning such broad searches or signaling approval for more widespread use.

It’s unknown whether Judge Curley was the one who signed the warrant in the first place, which presents the somewhat awkward situation of asking a judge to concede that she totally blew it when she approved a general warrant.  But regardless, Judge Curley had the chance to consider (or reconsider, as the case may be) the decision and stuck to her guns.

The problem, for Judge Curley, is that controverting a warrant, or granting suppression, means that you let a bad guy go, piss off the cops and offer up your smile as posterchild for soft-on-crime.  Better to be wrong on the side of the angels than right on the side of the devil. 

And so an appellate court may review the warrant, and may reverse.  Or may not.  Or may play some rhetorical games to cover up the wrong that appears to flagrant to so many.  Or may just switch around some salient facts to create a scenario that bears no familiarity with what we think we know now.  Or whatever.

Life in the trenches rarely meets the academic or theoretical purity that we pretend informs the law.  It’s ugly and nasty, and it’s often unfair.  That’s why we fight about it, and try to out-unfair the other side as well as the judge.  Because we know that there’s a judge somewhere who will sign a warrant for “all persons,” and do some pretty awful other stuff as well.

While there are some  major problems with the government’s ability to deal with technology, sometimes these problems inure to the benefit of those favoring privacy.  From the New York Times :

The F.B.I. has been quietly laying the groundwork for years for a push to require Internet-based communications services — like Gmail, Facebook, Twitter, BlackBerry and Skype — to design their systems with a built-in way to comply with wiretap orders. On Thursday, the bureau made its first full airing of the “going dark” problem.

“Due to the revolutionary expansion of communications technology in recent years, the government finds that it is rapidly losing ground in its ability to execute court orders with respect to Internet-based communications,” said the F.B.I.’s general counsel, Valerie Caproni.

While the government has yet to settle on what exactly it wants internet communications companies to do to facilitate its ability to access our every communication at will (although it would never do that, because it would be wrong), the gist of Caproni’s testimony was that the FBI wants Congress to mandate that all internet based communications include a “back door.”

Somewhat surprisingly, her request was not met with thunderous applause.

Representative John Conyers Jr. of Michigan, the ranking Democrat on the Judiciary Committee, was one of several lawmakers who said he was likely to greet such a proposal with skepticism. Forcing Internet communications services to build in “back doors” for law enforcement surveillance, he said, would hamper innovation and create vulnerabilities for hackers and foreign governments to exploit.

“Requiring back doors in all communications systems by law runs counter to how the Internet works and may make it impossible for some companies to offer their services,” Mr. Conyers said.

Notably, Rep. Conyers’ concern wasn’t about privacy or abuse, but rather economic development and external exploitation. 

Several lawmakers of both parties raised concerns about how such a mandate would affect the competitiveness of Internet companies that operate in the United States. Still, several Republicans suggested sympathy with law enforcement officials’ fear that changing technology could hamper their ability to investigate criminals and terrorists.

Clearly, there’s potential for a political rift here, given the need for some to seek re-election on a tough-on-crime platform, while others plan to run on it’s-the-economy-stupid line. 

Regardless, the current state, and apparent development, of technologies designed to thwart hackers and protect confidences also precludes many new tech companies from giving the government what it wants; plain text versions (like on white paper in courier 12 point font, in triplicate) of all communications, no matter what medium is used, going back years.

The FBI contention is not that they seek greater powers to intercept communications, but merely that they are trying to stay afloat as technology sinks their plans.

A 1994 law requires phone companies to build their networks with the capability of immediately starting to intercept a user’s communications when the company is presented with a wiretap order. But that law does not cover Internet-based communication providers.

As a result, while they, too, are subject to court wiretap orders, they are often unable to comply, for technical reasons, when presented with one.

While unmentioned during Caproni’s testimony, my sources inside government inform me that if Congress fails to provide the FBI with the resources it needs to intercept any communication via any medium now or in the future, there are secret contingency plans to go the garage/headquarters of all developing internet communications provides and beat the living daylights out of them until they acquiesce.

For the moment, however, there might be a more valuable purpose to twitter than previously realized.

At least for now, no one is arguing that 21 year old Evan Daniel Emory isn’t deserving of some condemnation.   Eugene Volokh thinks so.   Jonathan Turley thinks so.   Radley Balko thinks so.  Kinda.

Evan Daniel Emory, 21, got permission from Beachnau Elementary School officials in Michigan to record himself singing the song “Lunch Lady Land” in front of a class of first graders, but under the false pretense that he wanted to use the video as part of his application to a school of education. Emory was actually planning a comedy bit. He later dubbed in sexually profane lyrics and posted the video to YouTube, making it look as if he had sang the dirty lyrics directly to the children.

And then all hell broke lose in Ravenna, Michigan.

Now, I can understand if Beachnau school officials and parents don’t share Emory’s sense of humor. I can understand a parent becoming rather irate upon learning that Emory had serenaded the kids with filthy lyrics. And even after learning that the dirty audio had been dubbed in, I can also understand a parent might still be ticked off that his kid’s face appeared in the finished product. (The video is obviously offline now, but according to the article, it begins with Emory writing on a chalkboard, “Disclaimer: No children were exposed to the ‘Graphic Content’ of this video.”)

Then Radley played a bit of a joke on his readers, suggesting that the local prosecutor, Muskegon County District Attorney Tony Tague, responded by calming down the townspeople with their torches and pitchforks.

“Look, I know a lot of people are upset. But the video has been taken down, and the actual damage done to the kids is minimal. They didn’t actually hear the sexually suggestive lyrics. Any time you have a story about sex, children, and the Internet, there’s going to be a tendency for some people to overreact. Mr. Emory showed incredibly poor judgment here, and I hope he has learned his lesson. But my job is to fairly apply the law, and I simply don’t think it would be in the interest of justice to charge Mr. Emory with a crime just to register our moral outrage at his prank.

Of course, that’s not what happened. Instead, Emory was arrested and charged “with manufacturing child sexual abusive material, a 20-year felony.”

While no voice has yet been raised in support of the charge, contending that anything done here satisfies either the local statute or some broader notion of creating child porn.  Still, there remains a question of whether this conduct constitutes a crime, and if so, what?

It appears from Radley’s post, most notably his title, The Criminalization of Borat, that this conduct falls into the prank category, and that, “in the interest of justice,” it’s dismissed as no harm, no foul.  It’s not nearly as clear to me.

There appears to be little doubt that Emory lied his way into a school, thus fraudulently inducing the school to permit him to obtain footage of first graders for his own purposes.  My understanding is that their faces were readily identifiable in the video, which was gone before I could see it.   While the children were never, in fact, exposed to anything inappropriate in song, they were exposed to the world in the video.  That alone troubles me.

It may well be that my personal sensibilities about the exploitation of children color my vision.  It may be that a shot intentionally fired at a person’s head, which happens to miss, doesn’t negate an attempt at murder.  But the conduct here strikes me as going beyond a mere prank, and exceeds the no harm, no foul, analysis. 

If so, then what crime would it be?  Or am I overly sensitive to improper conduct involving children?

As I watched Lance Armstrong win the Tour de France, again, my admiration for his achievement was dampened by the sight of a U.S. Postal Service logo on his chest. The post office  spent $4 million  for the endorsement.  This came at a time when the price of stamps was increasing hourly while service cutbacks were constantly threatened.  Performance by postal employees did not reflect performance by Armstrong.

Now $4 million, in the scheme of a big money operation like the postal service, isn’t a great deal of money, although it would be a few rolls of stamps.  What was disturbing was that these quasi-public monies were being used to fund a private team for the purpose of marketing.  I wondered, “wouldn’t the better use be to improve service, reduce costs, perform its public function,” than put its logo on Armstrong’s chest?

Apparently, I was the only one who thought this, as there was no cry of anguish at the sight of a stylized blue eagle (as if the lack of an up-to-date logo would have adversely affected the existence of the Postal Service) stretched across Lance’s yellow jersey.  As much as it bothered me, I was alone.

Following the Superbowl,  Jonathan Turley noted that there was a Navy flyover in the pregame that cost about $450,000.  While these flyovers stir patriotic fervor, and can be pretty cool to watch, he still found it a bit problematic since the stadium was domed. 

The Navy insists that it is good for public relations . . . for the public to see that it is willing to spend hundreds of thousands of dollars at a time of economic stress to fly over a closed domed stadium.

Much of the cost for the flyover stemmed from having to transport the F-18 jets from Virginia Beach to the Great Republic of Texas, even though the spectators inside the stadium watched the flyover on the jumbotron.

Turley  raises another issue with the military’s expenditure of $100 million to sponsor NASCAR.  For those of you unfamiliar with NASCAR, it’s the auto racing progeny of bootleggers escaping from the revenuers, reduced to turning left at high rates of speed. Via CNN :

Rep. Betty McCollum, D-Minnesota, is offering an amendment to the 2011 House budget bill to ban the sponsorships, which her office said has cost the military $100 million over the past 10 years, according to the Minneapolis Star-Tribune.

The National Guard sponsors Dale Earnhardt Jr.’s team, the Army sponsors Ryan Newman, and the Air Force sponsors AJ Allmendinger, according to HamptonRoads.com.

“I would challenge the Pentagon to give me one example of someone today in Iraq or Afghanistan who saw the Go Army car going around the racetrack and that’s why they joined the Army,”

Not surprisingly, the people who get the money think otherwise.

“NASCAR fans are the kind of people who fight America’s wars, which would put into question the wisdom of banning the military’s ability to reach out to them,” NASCAR spokesman Randy Poston said in the HamptonRoads report.

He’s got a point about NASCAR fans, with the rest of us sipping champagne in our limos.  Yet the point doesn’t seem to have any nexus, any connection between logos on cars and getting killed in Iraq.  Well, maybe the getting killed part.

At what point did marketers infiltrate our government and whisper in the ears of elected officials that tax dollars would be best used to “authentically engage” with the public, thus making them desire to hand over their money, vote for the incumbent, offer up their children as canon fodder and subject their genitalia to a quick feel by overweight men?

I say this not because of any skeptical view as to the efficacy of spending $100 million on NASCAR, which could have otherwise been used to buy a couple of Bunker Busters in case Saddam is resurrected, but in sympathy with Turley’s point, that our schools are cutting teachers while the military is sponsoring race cars.  This might trouble some people, especially teachers.

One of the fundamental benefits of being a government is that you’re the government.  You have the ability to tax, as well as the ability to decide where those tax dollars get spent.  While talking heads spew sound bites on television carefully crafted to impugn the other side while not cracking up on camera, you know that nobody else gets to form a government to compete with you. 

Sure, there private enterprises challenging governmental hegemony, from Federal Express to Halliburton, but has anybody figured out that they way to maintain control is to do the job well rather than market?  And if you can’t provide a service as well as a private company, then that’s just one less thing you have to worry about in office. 

My guess is that marketers, of the sort who promote their services to lawyers and laundry detergent, can offer a ringing endorsement of why our tax dollars should be spent on promoting government services, with a bit of it going to the marketers who come up with these bright ideas. 

Still, I have to wonder whether aficionados of NASCAR are willing to have their kids’ teachers laid off so that our military can put Army on the hood of Ryan Newman’s Chevy. What?  Oh.  They laid off their teachers years ago and nobody notice? 

In  a comment to this post on the hot, sexy issue of copyright, Mark Draughn, better known as the Windypundit, related the issue to a massive screw up by the Department of Homeland Security.  Which one, you ask?  Isn’t sad that the words “massive screwup” aren’t sufficient to describe it?  Anyway, this one :

What if you woke up one morning and your blog’s URL pointed to a Department of Homeland Security page that said, “Website seized for trafficking in child pornography”? That’s what happened to 84,000 innocent site owners this week, and there’s no guarantee it won’t happen again.

It appears that our computer savvy protectors at ICE seized a primary domain without realizing that it had tens of thousand of legitimate subdomains, and perhaps a few that were less than legitimate.  Windy commented:

As it happens there’s was an apparent example of what can go wrong with this kind of process just the other day. According to Radley Balko, the DHS got a court order to seize the domain names of 10 sites that allegedly had child pornography on them. Apparently, the order accidentally removed an entire 2nd tier domain (kind of like removing blogspot.com instead of someblogname.blogspot.com), and over 80,000 websites were diverted to a DHS message claiming the site had been shut down for hosting child pornography.

You don’t have to hate copyright to think that DMCA and related laws are slanted too far in favor of copyright holders (especially well-established content producers) to the detriment of technology companies, small content producers, and consumers. It may be that reproducing the paper-books-and-vinyl-records content licensing system in the virtual world is not the best policy.

This raises a critical distinction that’s too often missed, or misunderstood.  Don’t confuse bad execution with bad law. 

One of the foundational wrongs often discussed in the blawgosphere is the conviction of innocent people for a heinous crime, like murder or rape.  There’s no question that it happens.  Does this mean our laws prohibiting murder or rape are wrong or bad?  Of course not.  These are terrible crimes, and they should be.

The problem is the manner in which the investigation and prosecution of these individuals occurs, with a thousand moving parts any of which can go wrong and produce very bad results. 

In a more controversial example, what of search warrants based on stale information or executed at the wrong location?  Is the solution to do away with search warrants, or to perform the function of review or execution far better?  Some might hate the idea of a warrant, an ex parte application to search and seize, but most of us realize that it’s a necessary method of obtaining evidence of a crime.  Without search warrants, and assuming warrantless searches never occurred, concealment of crime would be a snap, and seizure of evidence or contraband would be rendered impossible.

Are we seeking a society where, in the elevation of rights over reason, crime could be committed without recourse?  Few of us really want to be the victim of crime, and as much as we carefully guard our rights, we aren’t so blind or simplistic as to think that crime isn’t a bad thing. 

Windy’s comment reflects the conflation of the two independent issues.  There is no law, no process, that can’t be screwed up and result in harm, even massive harm, if handled carelessly or malevolently.  The point of warrants is to have a neutral magistrate pass on its propriety before allowing the government to have its way with us.  Before the question is put to the magistrate, the government is expected to exercise a bit of care and caution so as to be reasonably correct before pointing guns at people’s heads.

In Windy’s example, a few unfortunately typical problems appear to have arisen simultaneously, producing outrageous results, with 84,000 “innocent” subdomains being seized and rerouted to a DHS webpage that informed the viewer, “Website seized for trafficking in child pornography.”  There’s nothing like grandma’s recipe blog beings smeared as a kiddie porn trafficker.  Try shaking off that image quickly.

The government has never shown finesse at dealing with technology, and the courts even less so.  The heavy hand of law enforcement, which will attest whenever possible to its omniscience in all things under the sun, could make the effort to use a scalpel rather than a bludgeon.  Yet it fails to do so with remarkable frequency, and rarely shows much concern for its failings or interest in doing it better.  But this isn’t limited to a domain seizure, but all things tech. 

Similarly, judges who sign off on warrants need to be sufficiently aware of the weapon they’re handing over to the government, as part of their oversight function in assuring that the warrants are sufficiently specific to cover no more than what’s required.  While it’s easy to blame the government for the 84,000 victims of its ignorance, let’s not forget that a judge gave his seal of approval, perhaps by rubber stamp.  This isn’t good enough, and whoever signed the warrant failed to fulfill his function.

But the  Techland post describing this fiasco argues;

So far so good, since it’s perfectly legitimate for ICE to target the bad guys. But critics of the seizures point to a seeming lack of due process. The feds determine a site to be infringing and ask a judge to sign a seizure warrant that tells the site’s domain name company to transfer control of the domain name to the government, which then points it to a “seized by DHS” page. The problem is the warrants are issued ex parte, which means that the targeted website owners are not notified and don’t have an opportunity to present their side of the story to the judge.

Ironically, the “critics” referred to in the paragraph is David Post at Volokh, and his criticism is bizarre, arguing that it was “outrageous” that the warrants were issued ex parte.  All warrants, other than for the seizure of real property, are issued ex parte, and warrants would serve no purpose if they weren’t.  If the execution had been handled competently, and the only affected websites were in fact showing or selling videos of actual child pornography, should they have been left in operation while the issue was challenged?

Certainly, after the execution of the warrant, there must be due process provided for the owners of the websites to challenge the government’s action, regardless of whether the government handled the matter perfectly or horribly, as here.  But we don’t let the wrong continue unabated, in this case children compelled to engage in sex acts with adults, while lawyers fight it out in court.  The first move is to stop the bleeding.  The problem is to stop only the bleeding.

Regardless of how one feels on these issues, and the right and wrong of underlying laws is invariably based on a weighing of priorities and harm, where we may hold different but legitimate opinions, the fact that the government performs its duties poorly, incompetently, stupidly, is a flaw of the government’s execution, not the law.  There’s plenty of blame to be placed, but let’s make sure we place it where it belongs.

Update:  At the time that Windy posted his comment, Radley Balko had not (that I can tell) posted anything about this case.  He has now. 

So the Dean of your law school gets murdered. Regularly. As part of an example by your criminal law professor.  Who’s a white male. And the Dean is a black female. And this makes you feel bad. Discuss.

From DelawareOnline , this is no caselaw example, but what happened at Widener Law School:

During a spring 2010 criminal law class, Lawrence Connell shot and killed Linda Ammons — hypothetically speaking.

Connell considered the pretend notion of his murdering the Widener School of Law dean an absurd example meant to help students remember a legal principle.

But at least two students filed complaints with administrators, calling it violent, racist and sexist, according to Connell’s attorney, Thomas Neuberger.

Now, the controversial classroom imagery has left the associate professor fighting to keep his job of 26 years and alleging Widener violated his right to academic freedom.

For any reader who didn’t enjoy the pleasure of law school tuition bills, Orin Kerr, a lawprof himself, explains the norm:

One of the common ways that law professors keep students mildly entertained in class is by posing hypotheticals involving their professors and the Dean. I ‘m not sure why this is so funny, but students just love it. If you teach first-year criminal law, which typically focuses heavily on homicide crimes, that means you spend a lot of time imagining your colleagues meeting horrible fates. If A kills B out of revenge, that’s just a boring hypothetical. But if the hypo involves the students’ Torts Professor killing the Dean out of revenge — or better yet, a conspiracy in which the Dean and the students’ Torts and Contract Professors agree to kill their Criminal law Professor for beer money — well, that’s serious entertainment. It may seem a bit morbid at first. But it’s the opposite, I think. Putting Professors or the Dean in the place of real criminals and real victims makes the scenario so absurd that it adds a bit of levity to what is otherwise a very depressing topic. As a result, it’s a common tool Criminal Law professors use when teaching first-year students the basic doctrines of criminal law. I suppose over the years I’ve murdered pretty much every 1st-year teacher — and certainly all my Deans — and they’ve all murdered me, too. (All during in-class hypos, mind you.)

It’s all in good fun, and intended to keep students engaged and interested.  For anyone inclined to wretch when they hear the word “blackacre,” you understand.

But law students, apparently, have both become more “sensitive” and simultaneously more assertive in complaining when something offends their delicate sensibilities.  Two students were sufficiently offended by Connell’s hypotheticals that they went to the Dean and complained.

In the description of the complaints provided to Connell, the unnamed students accuse him of using Ammons, a black woman, as the shooting victim in his class examples “at least 10 times,” Neuberger said. In one instance, a student alleged Connell used a hypothetical situation describing how he “blew her head off,” Neuberger said. His examples ranged from the gory to the intentionally absurd, according to Neuberger, such as when Connell asked students to imagine Ammons dealing drugs out of her office.

As  Orin later notes in reaction to the fact that it was two, rather than a lone, student who complained:

In my experience, law students rarely complain individually: They usually complain together, generally as a large-ish group. So if something was off, you’d expect a good-size group — maybe 5 or 10. Only two students complaining struck me as a bit suspicious.

And as for 10 instances of using the Dean in his examples,  Orin states that he kills off a few hundred people during the course of a semester, making the 10 times he murders a dean less than overwhelming.

Oh, the minefield through which a politically well-intended yet engaging professor walks these days.  How hard it will be when these whining inchoate lawyers finally make their way into a criminal courtroom, and get their delicate teacup butts smacked hard by reality.

When I was a baby lawyer, my case was called in the courtroom of a well-respected judge even though my client had yet to appear.  The judge, who happened to be black, stared at me as I shuffled my feet, looked at him with a sheepish grin and explained that the defendant had yet to arrive and no, I didn’t know why.

Then he laughed out loud, informing me that he understood completely why my client, who had been previously admonished to be in the courtroom at 9:30 in the morning unless he was dead, had failed to appear.

He’s on CP time.

Yes, that’s what the judge told me.  Not in a whisper.  Not at sidebar.  Not because we were close friends.  He said it loud and clear in an open courtroom on the record.  Do you know what that meant?

The judge wasn’t being racist.  He was dealing with some ugly reality in the trenches, and it saved my client from having a bench warrant issued and spending the rest of the case on Rikers Island.  He showed up later and was read the riot act, beaten into submission, told that his failure to be on time would result in being whipped within an inch of his life.  i don’t remember if he was on time for the next appearance, but I do remember thanking the judge for letting him go home that day and sleep in his own home with his wife and children.

That students are so hyper-vigilant and ever-ready to complain demonstrates their wonderful attention to detail, even when the details are so unclear that they’re compelled to extrapolate from their Dean’s gender and skin color that there’s racism and sexism afoot.

But if this so offends your sensibilities, so outrages you that you feel compelled to complain to your Dean, you are going to hate being a criminal defense lawyer.

Worse still is that the Widener Law School administration didn’t use this as a teachable moment for these two law students, and instead have taken Connell to task, despite his 26 years of teaching, the normalcy of using a murdered dean as an example and the basic tenet of academic freedom.  Instead, Widener chose to empower the whiners and encourage its students (and indirectly its lawprofs) to wallow in their childish sensitivity.

I understand how political correctness is used to change a culture to eliminate the vestiges of racism and sexism.  This isn’t an argument suggesting that either racism or sexism is a good thing, or even permissible.  But when your sensibilities are so delicate that you find one or the other, or both, under every rock, you’re going to have a very hard time functioning in a world where unpleasant things happen all the time, and no one wants to hear you whine about it.

And so there are two things to take from Lawrence Connell’s example: law students who are “uncomfortable” when examples don’t meet their personal approval need a good smack, and lawyers everywhere should be extremely cautious about hiring any kid out of Widener Law School.

I’ve long appreciated Jordon Furlong’s posts about the future of lawyers, seeing well down the road of technology and marketing.  It’s not that I think the picture is necessarily pretty, but nobody guaranteed that the future of the law would be rosey.

In a post at Stem Legal, Jordon’s day job, he implicitly states that blawging remains a mainstay for the future of law.  I’m down with that, since I don’t do Facebook or LinkedIn, and twitter is for those whose depth of thought is fully captured in 140 characters.  But, like most things, the devil is in the details, and this is where things get a bit shakey.  Jordon lays out the problem:

The principle is that the only reliable way for a law firm to build a lasting positive presence on the web is through the steady and timely production of relevant content: no amount of SEO gamesmanship will outperform good content that builds links with other websites. The theory is that law firms are filled with expert content producers who collectively can generate a tremendous amount of knowledge to fill the growing number of available vehicles (web pages, newsletters, blogs, Twitter, and so forth). The reality is that this is often more difficult to achieve than it sounds.

Jordon then looks for the cause:

It might be that such efforts are unbillable and therefore unattractive to busy lawyers under pressure to produce revenue. It might be that the firm has failed to sufficiently motivate and prioritize lawyer content production. Or it might simply be that lawyers want to practise law and leave the content to non-lawyer staff.

And thereafter, Jordon offers some cures:

Evangelize the benefits of content for increased prestige and prominence — if some lawyers aren’t yet sold on content’s virtues, show them how their competitors get attention and influence from content and encourage them to become “thought leaders” in their areas.

Doesn’t everybody want to be a “thought leader?”  This is where the pitch turns out to be screwball.  There remains a big strike zone for blawging problems, and yet Jordon’s pitches are low and outside.

As it’s already clear that there’s no empirical ROI to be had, legal marketers are forced to engage in Rube Goldberg-like machinations to justify their value, stringing wiggle words together, like “prestige and prominence.” to convey a warm, fuzzy and lucrative sense of worth.  But the hard gap can be found in the failure to recognize certain core problems with the pitch.

Blawging doesn’t bring in business.  Blawging doesn’t increase prestige and prominence.  Blawging doesn’t get attention or influence.  Blawging may do any or all of these things, but it doesn’t necessarily follow that if you blawg, anyone will care.  Take a gander at the thousands of abandoned blawgs, well-intended efforts, and some quite excellent, but just not worth the time or effort.  No amount of hyperbole will overcome the hard reality of empty, abandoned storefronts in the blawgosphere.

Much of the hype is in the form of silly, simplistic arguments offered by those who couldn’t cut it as lawyers so try to make a living as rainmaker coaches.  Smart lawyers laugh off these folks, seeing their tripe as another of the hundred pitches for law firm marketing bucks that come in daily.  We all get them, and that’s why computers have a delete button.

One of the nagging questions that lawyers ask is how it’s possible, given that there are a whole lot of lawyers out there, for all of them to spend their time creating content, producing an unreadable cacophany of lawyerly noise, to stand out sufficiently to make it worth their while.  Nobody wants to deal with this issue.  Obviously, if there are 10,000 blawgs floating in the ether, 9,900 aren’t going to be read.  Maybe more.  These are lousy odds.

Assuming one produces a blawg that gets some attention, how does that translate into being a “thought leader” as opposed to an embarrassment, a waste of time or the darling of readers who will never be capable of retaining your firm?  Again, no good answer.

For this reason, Jordon discusses the perpetual law firm rejoinder to blawging advocates:

From time to time, I’ve been asked (indirectly and otherwise) if in addition to advising law firms on blogging strategies and recommending an editorial direction, I would also be prepared to write the blog entries themselves. My response is always the same: I’m happy to review a draft post or brainstorm ideas, but the whole point of a blog post is that it’s personal and authentic. What is published under your name and your photo must come from you. Avoid “ghostblogging” in the law unless sincerity and trustworthiness aren’t important reputational assets to you.

While lawyers may be willing to give a blawg a go as a marketing tool, they aren’t willing to put their own time into the effort.  Maybe throwing a few bucks at some kid to write some slough on a blawg is worth the money, at least to see where it goes, but their time isn’t going to be wasted.  Jordon properly warns off ghostblogging, though his reasoning fails to capture the essence of the problem:  Put your reputation into the hands of some non-lawyer ghostblogger and you will find the quickest path to embarrassment and disgrace, maybe even some viral humiliation if it’s a slow day.

E-newsletters, sure: articles don’t even need bylines, and they can be professionally written with a lawyer’s input. Twitter feeds under the firm’s logo (but not under a lawyer’s name and photo) can and probably should be manned by professional communications staff; ditto a Facebook page. But blogs are a different animal. Bring in all the help you need to make a law firm or practice group blog timely, engaging and must-read. But the author and the voice of the blog must be the lawyer or lawyers behind it, or else all the relationship-, reputation-, and profile-enhancing aspects of blogging will be wasted, or worse.

Or maybe you’ll expend all these resources and get bupkis?

Make no mistake: your law firm needs lawyer-generated content if it hopes to compete for attention and respect on the Web.

Which leaves lawyers asking the only salient question.  Why do I want to get “attention and respect” on the web?  Until somebody comes up with a darn good answer to that question, blawging will remain a fun and enjoyable pastime for those of us who like writing stuff just in case anyone in the ether cares to read it, after which we can return to our work representing people. 

That the cottage industry of social media legal marketing exists may be troubling, but that lawyers aren’t willing to blindly swing at their pitches is encouraging.  Maybe there’s hope for lawyers yet?