First, stop the hating on AOL.  Some of us appreciate its retro feel, not to mention the fact that for many years, it was the only game in town.  Sure, today it’s frowned upon, a dinosaur, but for those of us who were early adopter, having an original AOL email address (the ones without numbers after the name) was pretty darned cool once.

Frank DiTomasso, however, might have preferred CompuServe.  His choice of AOL didn’t work out all that well.  Nailed for sending child porn via his AOL account, he learned that AOL monitors email attachments for illicit materials. From United States v. DiTomasso:

DiTomasso has an AOL email account — [email protected]. When AOL users send or receive emails that contain attachments, AOL runs two background monitoring systems designed to scan for illicit material, including, but not limited to, child pornography. The programs work by assigning “hash numbers” to image and video files. In essence, hash numbers are unique number-strings that can be used to archive packets of data —“fingerprint[s]” for electronic media.

AOL employs two different hashing programs. The first—the Image Detection and Filtering Process (“IDFP”)—sweeps for one-to-one matches with known child pornography. If an attached file is a one-to-one match, the email is quarantined —i.e., diverted from the recipient’s inbox—and an automatic report is generated and sent to the National Center for Missing and Exploited Children (“NCMEC report”).

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In a perverse sort of way, I have always hoped that the students at Harvard Law School were just a little smarter, a little more astute, a little deeper, than others.  It’s not that I thought there was something magical about Harvard, or some sort of negative reaction to Legally Blond, but that I hope that I respect intelligence, and hope that there will be a cadre of smarter lawyers out there than the ones who think they get solid legal advice from the Puddle.

Alas, my hopes were dashed upon reading the response of three Harvard law students to the protest of 28 of their professors to Harvard’s sexual assault policy.  In a Boston Globe essay, Anna Byers, Anna Joseph and Maggie Dunbar went public to express their disagreement, and disappointment, in their professors.

As students of Harvard Law School, we write to voice our support for survivors of sexual assault, for promoting equal access to the benefits of education, and for administrators who treated federal civil rights law as a floor rather than a ceiling.

Perspective is immediately revealed in their use of the word “survivors,” as if death was the alternative to agreement.  But the more significant fallacy appears in the phrase, “a floor rather than a ceiling.”  While a catchy phrase, it’s inapposite to the concept of a well-balanced law, which should be neither floor nor ceiling, but well-balanced. Continue reading →

Whenever the next new, great, cool, this-will-fix-everything idea pops on the scene, some mean old guy (occasionally me) will give it the stink-eye, look at it skeptically, and ponder what could go wrong. Someone else will then get very angry with the mean old guy (occasionally me) for always shooting down the next new, great, cool, this-will-fix-everything ideas, informing us (me) that we’re morons and demanding, if this idea sucks, then we should give them the “right” answer.

Happens all the time.

This is why:

When video visitation was first introduced in county jails, Grits supported it. It was pitched as a supplement to face to face visitation, a way someone could communicate with a loved one (or client) from a distance when for whatever reason they couldn’t come visit them in person. Proponents insisted face to face visitation would still be possible.

Now, that do-gooder pretense has been abandoned. Increasingly, county jails shifting to video visitation are eliminating face to face visits entirely – as is happening in Bastrop County this month and Travis County did last year – so a private vendor can charge families for the privilege of communicating with jail inmates. With 20/20 hindsight, it’s clear I wasn’t cynical enough, failing to foresee that counties and companies would seek to monetize families’ visits with incarcerated loved ones the same way that they gouged them on phone calls before the FCC reined them in.

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First, there was bullying. Then, cyberbullying. Next up was revenge porn. Now, it’s street harassment. The common thread between these wrongs that have generated calls for criminalization is that the harm to be ended isn’t objectively observable, quantifiable, provable, but ephemeral and personal.  They seek redress for hurt feelings.

Before anyone blows a gasket, this isn’t to say that hurt feelings aren’t real, or that they can’t also produce objective cognizable harms, such as public ridicule or loss of employment opportunity.  And some people whose feelings are deeply hurt harm themselves, to the point of committing suicide. This is a tragedy, as is any needless taking of life.

But the sticking point isn’t so much about whether hurt feelings are sufficiently serious as to warrant a criminal law, but rather how a law, an expression of elements of an offense in words, can be drawn in such a way as to clarify what is prohibited so that it is limited to the offensive conduct without giving rise to ambiguity.  It’s the ambiguity that opens the door to unconstitutional impacts, whether facial or as applied. Continue reading →

A good politician is one who gets bought and stays bought.

— Old Mike from the train

Judges will be elected today. And we will elect them, though we will not select them. Some will be smart. Some will look judgeish, though that’s the closest they come to being qualified. Most will be too young, too inexperienced, too partisan to be worthy of the position.  Some will prove bolder and better than expected.  Some will stay bought.

Judge Kopf posted this video about electing judges the other day:

It’s funny, and largely true. But then, the introduction of attack ads provides us with some greater insight into who they are and what they “stand” for. Continue reading →

When I was a kid, one of the more useful bits of advice my father gave me was that, whatever I would end up doing with my life, I should strive to be the best at it.  The best. That was the goal.  If I was going to be a waiter in a diner, I should be the best waiter in a diner ever.

Somewhere along the way, maybe a generation and a half ago, this advice morphed into “just do your best,” rather than be the best.  The change was subtle, but reflected the difference between efficiency and effectiveness.

As I kid, I never took this as too much pressure. It was what we should aspire to be, with the understanding that we may never quite reach the goal, but we would damn well keep trying.  To do less was to have no purpose. Goals were a good thing, the reason we kept pushing.  I never doubted that it was what I should aspire to, and it drove me forward.  I hit brick walls like everyone else, but it pushed me to find a way around them, under them, over them, to reach the other side.  To do any less was to give up.  I would not give up. Continue reading →

There are a handful of federal judges, bold and caring enough, who have come out from behind their bench to discuss what doesn’t work, what can be very wrong, about the legal system.  Senior Judge Jed Rakoff of the Southern District of New York is one of them, and offers a thoughtful discussion of how plea bargaining rose to prominence, subverted the system and might be fixed, in the New York Review of Books.

Judge Rakoff starts, and quickly dispenses, with the obvious but necessary statement.

The criminal justice system in the United States today bears little relationship to what the Founding Fathers contemplated, what the movies and television portray, or what the average American believes.

After a history of how, and why, we arrived at our current state of affairs, the slide down the slippery slope that began post-civil war and picked up an unstoppable head of steam from the 1960s to 1980s, he arrives where we have been since the Supreme Court ignored every federal judge who ruled on the Sentencing Guidelines and affirmed their mandatory use in Mistretta. Continue reading →

It will come as a shock that Maricopa County Sheriff, Crazy Joe Arpaio, has not seen the light when it comes to profiling people on the basis of race.  It might have something to do with the fact that he keeps getting re-elected because they agree with his views that everyone with darkish skin or an accent is presumptively an illegal, a criminal, and stealing their jerbs, and deserves to be hassled, if not arrested.

This didn’t sit well with U.S. District Court Judge Murray Snow, who retains jurisdiction following a 2007 suit against Arpaio’s office for racial profiling:

A U.S. federal judge on Tuesday ordered a controversial Arizona sheriff to undergo the same training as his deputies to prevent racial profiling and unlawful detention in the wake of the lawman’s recent comments.

U.S. District Court Judge Murray Snow criticized sheriff Joe Arpaio during a hearing in Phoenix for telling a reporter he would have no problem conducting an immigration sweep like one performed in the town of Guadalupe in 2008, which was later declared unconstitutional.

The judge ruled in May 2013 that Arpaio, who bills himself as “America’s Toughest Sheriff,” violated the rights of Latino drivers with his crackdown on illegal immigration and ordered him to stop using race as a factor in law enforcement decisions.

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My old prosecutor pal, Ken Lammers, explains why he thinks concerns about religious freedom, à la the First Amendment type, is overblown when it comes to the benefits offered by trend toward redemption in drug courts.

Religious organizations put a lot of work into helping their fellow man. Any drug court out there would be insane to ignore the resources provided by groups such as Catholic Charities or The Salvation Army. Even groups which are not specifically attached to a religion use faith as a tool (AA/NA).  However, in the modern world, with its veto of one, it’s difficult for a drug court to use any of these programs unless it wants to risk being sued out of existence.

Indeed, religious groups have done an excellent job of offering means to beat the addiction to drugs and alcohol.  They should be commended for putting the effort, and indeed, the money, into making programs available to help people.  But as Ken notes, part of their methodology is to use “faith as a tool.” Continue reading →

The New York Times Room for Debate series has, of late, ranged from the irrelevant to the presumptive, which is unfortunate given the size of its soapbox and its ability to offer meaningful insight into issues confronting society.  There are often good arguments on both sides of an issue, worth knowing if a thoughtful society is to make intelligent decisions.

One of the problems reflected in the editorial choices made is their favoring advocates and academics as their “debaters,” the former bringing a woeful lack of doctrinal knowledge and the latter bringing a woeful lack of real world experience.

More often than not, the debaters fail to inform, and instead inflame as die-hard advocates of the cause. Rarely does the Times invite a knowledgeable practitioner, say a criminal defense lawyer, to opine, when they raise questions of, say, criminal law.

Today’s Room for Debate, brought to my attention by Liliana Segura, is one of both great interest and concern to those of use who address the intersection of criminal law, First Amendment law and, dare I say it, feminist concerns.  The question posed: Do We Need a Law Against Catcalling? Continue reading →