Wednesday, December 25, 2013

Start monitoring TAFTA (a.k.a. TTIP); or WHY ARE THEY NEGOTIATING in SECRET?

TAFTA (Trans-Atlantic Free Trade Agreement), also known as TTIP (Transatlantic Trade and Investment Partnership), is a new, and very secret trade agreement being negotiated between the U.S. and E.U. It mirrors an earlier attempt in a provision of the Multilateral Agreement on Investment (MAI), in the mid- to late 1990's to work out an agreement among the 29 members of the OECD (Organisation for Economic Cooperation and Development). But they made the mistake back then of letting the word get out. And public opinion was VERY STRONGLY against it. So this time, they are negotiating in deepest secrecy.

Wow! This sounds familiar. A lot like what happened when some copyright holders convinced the U.S. Congress into recent attempts to sew up the intellectual property rights to the Internet with PIPA and SOPA. Then followed COICA and ACTA. Remember those ill-considered bills and treaties? Google and Facebook, Wikipedia and a number of other leading social media and search engine sites really led an effort to educate the public and lobby Congress about what terrible bills these were -- that the way they were written would cripple all the good things that make the Internet a real hub of commerce and intellectual ferment and creativity.

This time (and in the 1990's), the agreement is a work-around that achieves all the goodies that were on the checklists for those bills. A few whispers are trickling out. This link from Canada, sees the European public's point of view, where it seems as though American business is shoving changes down their throats so they can sell to them the shoddy goods that are now banned by the EU's superior regulatory schemes.

EFF, bless their hearts, are tracking this, and, of course, are looking at it from the Internet perspective (here is EFF's page link for TAFTA):

... a newly leaked document from La Quadrature du Net shows how EU delegates intend to set rules around liability for Internet Service Providers and regulations over the transfer and processing of users’ personal online data, as well as rules to set a “uniform approach” to cyber security across the region. While the document makes no mention of copyright enforcement, other statements lead us to believe that it will also be included.

U.S. and European delegates will negotiate TAFTA secretly, mirroring the same undemocratic processes that led to the Anti-Counterfeiting Trade Agreement (ACTA). Like the Trans-Pacific Partnership (TPP) agreement, TAFTA’s objective is to address a wide range of cross-border regulatory issues under one overarching agreement
(here is La Quadrature du Net's page link for TAFTA in English) Possibly it is lucky for us and the developing world that the negotiations may have broken down over the scandal of U.S. spying on our European allies. The word at EFF, back in July, 2013, on the U.S.- EU negotiations over TAFTA, was the European leaders' exclaiming over how impossible it was to continue trade talks in the atmosphere of cold-war tactics like NSA surveillance of friendly leaders. Thank you, NSA!

However, the English edition of the left-wing French monthly newspaper, Le Monde Diplomatique (an independent subsidiary of the daily Le Monde, which may be better known to our readers), provides an in-depth report and alert about the negotiations dated December 2, 2013. This report takes a much broader view of the focus of TAFTA than EFF, which truly focuses on just the impact it could have on Internet companies and users. It appears that TAFTA would require the United States, not just federal but also state and local laws to do something very like the E.U. harmonization principle, where the member states must bring their local laws into agreement with the European Union agreed law. So it would impact American law and citizens as well as EU consumers. Here is a segment from Le Monde Diplomatique:

The obligation of signatory countries to “ensure conformity of their laws, regulations and administrative procedures” to these terms would be strongly enforced. They would certainly be keen to honour the terms, since failure to do so would subject countries to legal challenges before tribunals specially created to arbitrate between investors and states, and having the power to authorise trade sanctions against the latter.

This is in line with other trade pacts already in force. Last year the World Trade Organisation (WTO) condemned the US over its rules on the “dolphin-safe” labelling of tuna and country-of-origin labelling of meat, and for banning candy-flavoured cigarettes, which it ruled were barriers to free trade. The WTO also ordered the EU to pay hundreds of millions of euros in penalties over its ban on imports of genetically modified organism (GMO) foods. The TTIP/TAFTA and the TPP would allow foreign companies to attack any signatory country whose policies impacted on their profits.

Companies would be able to demand compensation from countries whose health, financial, environmental and other public interest policies they thought to be undermining their interests, and take governments before extrajudicial tribunals. These tribunals, organised under World Bank and UN rules would have the power to order taxpayers to pay extensive compensation over legislation seen as undermining a company’s “expected future profits”. [snip]

The US Chamber of Commerce and BusinessEurope, two of the world’s largest business organisations, have called on TIPP-TAFTA negotiators to arrange for major industry stakeholders on both sides of the Atlantic to be “at the table with regulators to essentially co-write regulation.”

The corporate interests have been remarkably candid about their goals, for example rolling back GMO regulation. [snip]

The offensive is equally vigorous over personal privacy. The Digital Trade Coalition, a group of high-tech and Internet companies, has encouraged TTIP/TAFTA negotiators to ensure that EU data privacy policies do not encumber the flow of personal data into the US. After the recent revelations of the US National Security Agency’s (NSA) indiscriminate data spying programmes, the tech corporations’ statement that “the current judgment of the EU that the US does not provide ‘adequate’ privacy protection is not reasonable” seems particularly outrageous. The US Council for International Business, which includes companies such as Verizon that have handed vast quantities of personal data over to the NSA, has stated: “The agreement should seek to circumscribe exceptions, such as security and privacy, to ensure they are not used as disguised barriers to trade.”

Food safety is also a target. The US meat industry is seeking to use the TTIP/TAFTA to remove the EU ban on the post-slaughter dipping of meat in chlorine. The North American Meat Association laments that “only the application of water and steam are permitted for use on meat carcasses by the EU.” [snip]

Ractopamine is a drug used to promote leanness of meat in cattle and pigs. It has been banned or limited in 160 nations (including EU member states, Russia and China) due to potential risks to human and animal health. The National Pork Producers Council sees these protective measures as a distortion of the principle of free trade that the TIPP-TAFTA must rectify urgently: “US pork producers will not accept any outcome other than the elimination of the EU ban on the use of ractopamine in the production process.” [snip]

Airlines for America (A4A), the biggest US airline industry association, has drawn up a list of “needless regulations [that] impose a substantial drag on our industry” — which they hope can be dismantled via the TTIP/TAFTA. First is the EU Emissions Trading Scheme, Europe’s central climate change policy, which required airlines to pay for carbon emissions. A4A labels the policy a “barrier to progress,” ... [snip]

But the most determined enemy of regulation is the financial sector. Five years after the global financial crisis, the US and EU negotiators have agreed that regulation has had its day. The framework they want to put in place would remove all safeguards on high-risk investments and prevent governments from controlling the volume, nature or origin of financial products on the market. Basically, the word “regulation” would be removed from the dictionary.

Where has this return to Thatcherism come from? The Association of German Banks has “concerns” about the (timid) reform of Wall Street after the financial crisis of 2008. The association includes Deutsche Bank, which received hundreds of billions of dollars from the US Federal Reserve in 2009, in exchange for mortgage-backed securities. Deutsche Bank takes issue with the Volcker Rule, a centrepiece of the Wall Street reform, calling it “much too extraterritorially burdensome for non-US banks”. Insurance Europe, a federation of European insurance firms, has stated its hope that the TIPP-TAFTA can be used to “remove” collateral requirements that keep financial firms from taking on high-risk investments.
I recommend you read the two links (EFF & Le Monde Diplomatique) and look for more information. This will hugely remake our world if it actually is negotiated. There is very little evidence that it will improve Gross Domestic Product (there is a section at the end of the LMD article about this), so it will really only benefit the CEOs at the top of the corporations, quite possibly not even the shareholders.

Here is another link: Public, Huffington Post follows TAFTA, Food and Water Watch on TAFTA, Tumblr TAFTA links, and, from the other side, TAFTA,The Case for an Open Transatlantic Free Trade Area, a 300 page booklet in PDF format by Jaime Garcia Lagaz and Joseph Quinlan for the Foundation for Social Studies and Analysis (FAES, which seems to be from Spain, since the booklet was printed there, though the booklet is English with an American flag decorating the cover of, at least, this edition).

I must credit the fabulous image decorating this blog post. I found it at where the blogger, Rick Falkvinge, the founder of the Swedish and first Pirate Party, is discussing the problems with the Unitary Patent. The image of an EU flag with a hand grabbing across it, and symbols of law, were just too perfect for this blog post. Thank you, Rick and kudos to you or whomever created this awesome image for your blog post!

Friday, December 20, 2013

New on SSRN: Legal Education in Crisis, and Why Law Libraries are Doomed

It's still a bit rough, but in view of recent developments in law library land (including reports from Washington University Law School), I thought I should post this for comment:

Legal Education in Crisis, and Why Law Libraries are Doomed


The dual crises facing legal education—the economic crisis affecting both the job market and the pool of law school applicants, and the crisis of confidence in the ability of law schools and the ABA accreditation process to meet the needs of lawyers or society at large—have undermined the case for not only the autonomy, but the very existence, of law school libraries as we have known them. Legal education in the United States is about to undergo a long-term contraction, and law libraries will be among the first to go. A few law schools may abandon the traditional law library completely. Some law schools will see their libraries whittled away bit by bit as they attempt to answer “the Yirka Question” in the face of shrinking resources, reexamined priorities, and university centralization. What choices individual schools make will largely be driven by how they play the status game.

Number of Pages in PDF File: 37

Keywords: law libraries, legal education, law schools, rankings, reputation

Tuesday, December 17, 2013

NSA decision, Klayman v. Obama

The exciting decision from the Federal District Court for the District of Columbia, Judge Richard Leon presiding, just came out, and it's quite powerful. You can see the full text at Scribd. Judge Leon writes a strongly worded opinion, that is rather narrow in actual scope, but contains a good deal of important reasoning. There are 2 cases joined here, so there are 2 petitioners. The judge is only ruling on petitioners' requests for an injunction against the NSA continuing to gather metadata about their telephone calls as part of their Bulk Telephony Metadata Program. Judge Leon further rules that the NSA must destroy any information they have already collected of this nature about the two petitioners.

However, in coming to this ruling, Judge Leon distinguishes the 1979 decision, Smith v. Maryland, 442 U.S. 735 which the FISC Court has ruled "squarely control[s]" on the issue of "telephone service provider metadata." Indeed, the government has so heavily relied on courts accepting the Smith case as controlling, that they have considered the issue as completely settled. In Smith, the police installed a pen register on a telephone without a warrant, after a robbery victim complained to them that she was receiving obscene and threatening phone calls. The FISC court accepted the Smith precedent in a decision that has been redacted and published at their website, In Re An Application of the [FBI] for an Order Requiring the Production of Tangible Things from [Redacted], BR13-109 at 6-9, (FISC, Aug. 29, 2013). Leon, however, writes that a short term, very limited pen register is a far cry from the long-running, wide-ranging modern technology being deployed n the Bulk Telephony Metadata Program, and furthermore notes that the Supreme Court recently called the Smith decision into some doubt in United States v. Jones, 132 U.S. 945 (2012), (attaching a GPS device to a vehicle) a 5-4 decision. Judge Leon notes that the Supreme Court took the Jones decision as an opportunity to revisit the Smith decision, because there was an earlier warrantless tracking device opinion, United States v. Knotts, 460 U.S. 276 (1983) which could have been used as precedent.

Judge Leon uses strong language about the NSA datagathering program, which enlists the nation's telecommunications giants (and, incidentally, the Internet search and social networking providers as well) to
"operate what is effectively a joint intelligence-gathering operation with the Government." Klayman, at 48. ... the almost Orwellian technology that enables the government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979. ... The notion that the government could collect similar data on hundreds of millions of people and retain that data for a five-year period, updating it with new data every day in perpetuity, was at best in 1979, the stuff of science fiction. By comparison, the Government has at its disposal today the most advanced twenty-first century tools, allowing it to "store such records and efficiently mine them for information years into the future." Jones, 132 S.Ct. at 956 (Sotomayor, J., concurring). ... (Klayman at 49)

And finally and most importantly, not only is the Government's ability to collect, store and analyze phone data greater now than it was in 1979, but the nature and quantity of the information contained in people's telephone metadata is much greater as well.... But the ubiquity of phones has dramatically altered the quantity of information now available and, more importantly, what that information can tell the Government about people's lives. ... Records that once would have revealed a few scattered tiles of information about a person now reveal an entire mosaic, a vibrant and constantly updating picture of the person's life. ... (Klayman at 50, 54)

In sum, the Smith pen register and the ongoing NSA Bulk Telephone Metadata Program have so many significant distinctions between them that I cannot navigate these uncharted Fourth Amendment waters using as my North Star a case that predates the rise of cell phones. (Klayman, at 55)

[Judge Leon next examines the likelihood that the petitioners will succeed in showing that the searches are unreasonable. He does a very careful survey of the Supreme Court Fourth Amendment jurisprudence, and concludes:] ... To my knowledge, however, no court has ever recognized a special need sufficient to justify continuous, daily searches of virtually every American citizen without any particularized suspicion. In effect, the Government urges me to be the first non-FISC judge to sanction such a dragnet. (Klayman at 58)

The Government asserts that the Bulk Telephony Metadata Program serves the "programmatic purpose" of "identifying unknown terrorist operatives and preventing terrorist attacks." Govt.'s Opp'n at 51 -- an interest that everyone, including this Court, agrees is "of the highest order of magnitude," In re Directives Pursuant to Section 105B of the Foreign Intelligence Surveillance Act, 551 F3d 1004, 1012 (FISA Ct. Rev, 2008). ... A closer examination of the record, however, reveals that the Government's interest is a bit more nuanced -- it is not merely to investigate potential terrorists, but rather, to do so faster than other investigative methods might allow. ... (Klayman, at 59-60)

Yet, turning to the efficiency prong, the Government does not cite a single instance in which analysis of the NSA's bulk metadata collection actually stopped an imminent attack or otherwise aided the Government in achieving any object that was time-sensitive in nature. In fact, none of the three "recent episodes" cited by the Government which supposedly "illustrate the role that telephony metadata analysis can play in preventing and protecting against terrorist attack" involved any apparent urgency. (Klayman, at 61. Judge Leon describes the 3 examples laid out by the Government in the Holley Declarations, and finds none of the three persuasive). ... Given the limited record before me ... most notably, the utter lack of evidence that a terrorist attack has ever been prevented because searching the NSA database was faster than investigative tactics -- I have serious doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism ... (Klayman at 62)

I cannot imagine a more "indiscriminate" and "arbitrary invasion" than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval. Surely, such a program infringes on "that degree of privacy" that the Founders enshrined in the Fourth Amendment. Indeed, I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware "the abridgement of freedom of the people by gradual and silent encroachments by those in power," would be aghast. (Klayman at 64)

[Judge Leon then considers the Government's complaint of the burdensomeness of removing the two plaintiffs from its database and that this may cause a number of other such requests, degrading the utility of the program.] ... Of course the public has no interest in saving the Government from the burdens of complying with the Constitution! ... For reasons already explained, I am not convinced ... that the NSA's database has ever truly served the purpose of rapidly identifying terrorists in time-sensitive investigations, and so I am certainly not convinced that the removal of two individuals from the database will "degrade" the program in any meaningful sense. (Klayman at 66)

This case is the latest chapter in the Judiciary's continuing challenge to balance the national interests of the United States with the individual liberties of our citizens. The Government, in its understandable zeal to protect our homeland, has crafted a counterterrorism program with respect to telephone metadata that strikes the balance based in large part on a thirty-four year old Supreme Court precedent, the relevance of which has been eclipsed by technological advances and a cell phone-centric lifestyle heretofore inconceivable. ... (Klayman at 66-67)

The image of Judge Leon decorating this post is from Suffolk Law Review's Donahue Lecture series. Judge Leon spoke at our school in 2012, about his cases on the Guantanamo detainee litigation, balancing personal liberties against national security during the war on terror. Seeing the title of his talk, which I attended, makes it doubly interesting that he heard this case on the NSA.

Monday, December 16, 2013

Book review - The Library: A World History

Jan Gardner in the Boston Globe writes a very enjoyable book review of a new book, The Library: A World History, by James W.P. Campbell, with photographs by Will Pryce. Campbell is an architectural historian, and visited libraries around the world. He also covers libraries through history, so the book is a travelogue and a historical guide as well, to great and interesting libraries. The book features quaint, beautiful library features, secret doors, amazing books, wonderful building features and settings.

Among the libraries in New England featured that I know are the wonderful Thomas Crane public library in Quincy, which is a beautiful place. The very beautiful old building is, I think, what the book features, but they have added a new addition which skillfully references the style of the original while including a soaring atrium and modern amenities. The images above are the Thomas Crane Library, both of the original building. These pictures are from the Crane Library website.

There is also the fabulous Beinecke Rare Books Library at Yale, which is an astounding building. Outside, it it looks almost forbidding with a windowless exterior of Vermont marble slabs held in frames of white concrete. But inside, if it's a sunny day, the light shines through the marble, in a quite astounding way. The two images of the Beinecke are from the Globe article and they credit the pictures to Will Pryce, so they must be from the book.

Tuesday, December 10, 2013

Nobel prize winner declares boycott of major science journals

The British newspaper, The Guardian, reported Dec. 9, 2013 that U.S. physiology/medicine Nobelist Randy Schekman, a biology professor of University of California, Berkeley, has announced that he will boycott publishing in Nature, Cell and Science. Dr. Schekman writes directly to the public about the problem as he sees it, in the pages of The Guardian.

1. The high profile journals are often more interested in improving their "brand" than in forwarding knowledge.

2. Publication in high-profile journals is often used as a proxy for quality when decisions are made about grants, promotion and tenure.

3. In order to pump the brand by increasing the perception of exclusivity, these journals artificially restrict the number of papers they accept.

4. "Impact Factor" has been used as a marketing tool, and in fact, is deeply flawed as a measure of the actual impact of either the journal or the articles it carries. Pursuing the increase in Impact Factor has become a distorting end in itself, affecting acceptance decisions, and other decisions.

5. The factors that go into calculating the Impact Factor, such as number of citations, are not necessarily real measures of the quality of the article. It may simply be eye-catching, provocative or wrong.

6. Editors of these high profile or luxury journals recognize this and often accept article that are poor science simply because they will be highly cited, pumping up the journal's average Impact Factor.

7. Many scientists also recognize the increase in publishability of such articles and are writing more such articles, creating bubbles in fashionable fields, making bold statements that are attractive to such editors. The prevalence of these articles are driving out the doing of more important science and publishing such as replication studies.

8. In extreme cases, Schekman believes that the high-profile journals contribute to researchers cutting corners, with the result that articles are published which must ultimately be retracted. He points to a recent events where the journal

Science alone has recently retracted high-profile papers reporting cloned human embryos, links between littering and violence, and the genetic profiles of centenarians. Perhaps worse, it has not retracted claims that a microbe is able to use arsenic in its DNA instead of phosphorus, despite overwhelming scientific criticism.

Schekman is editing one of the new open access e-journals, which he hopes will help address these problems. He edits eLife, which he says has no artificial caps on the number of articles it will accept. He has a number of scientist editing articles along with him, so that the editorial choices are being made on the quality of the science in the paper, rather than any other criteria. He notes that the journal is currently supported by Wellcome Trust, the Howard Hughes Medical Institute and the Max Planck Society.

Schekman calls on the decision-making and funding organizations to move away from reliance on the high-profile "luxury" journals as proxies for quality. He admits that the papers that won the Nobel prize were published in such journals. Which gets back to the basic problem in this battle. Unless and until tenure committees truly commit in a reliable way to accepting publication in a journal such as e-Life as the equivalent to publication in Science or Nature or Cell for tenure and promotion decisions, junior faculty will be loathe to follow Schekman in his boycott until they, too, have made their names. The boycott will necessarily be a struggle of senior scientists who have made their names. In a way, that will be good, because these high-profile journals will be damaged by losing such high-profile authors. Yet, the up-coming Nobelists will still be publishing the papers in Cell, Nature and Science that will sooner or later win the their Nobel prizes.

The decoration of the cart before the horse is from a blog post at, a witty post about funding her training for marathons by issuing indulgences for sloth. She does not give any information about where she found the image, which looks old enough to be out of copyright. Also, charming. It reflects my humble opinion that until the academic establishment begins to really support this idea, these boycotts are putting the cart before the horse. But I suppose the establishment won't move its collective fanny without such gestures. We'll see.

Florida International University (not law) arrests 3 for exam thefts

The Miami Herald reports today that university police at Florida International University have arrested 3 individuals in an organized plan to steal and distribute final examinations. They allege that a 30 year old alumnus, hacked into a professor's e-mail. He then entered a university room without permission and took about 5 exams. He then organized a "distribution system" involving two current upper classmen. When the university police arrested one of the students, she was carrying $860 from alleged sales of the exams. This does not seem to have affected the law school directly, but I am sure that computer security will be seriously examined in the near future.

Sunday, December 08, 2013

Disneyfication, Power Women and the Problem of Flattening Personality

There was an excellent essay in today's Boston Globe Opinions by Joanna Weiss, "The Problem with Princesses." Weiss is referring to an Internet tornado that has grown out of backlash from Disney giving the standard princess treatment to the very non-princessy character Merida from Pixar's "Brave." There was a petition challenging the matter of Disney re-designing Merida with a thinner look, bigger eyes, and tamed locks, into a more standard Disney princess look from a group called A Mighty

In response to this, British artist David Trumble created a series of satirical "princess" portraits of 10 real life women of accomplishment. Leading off with "Supreme Princess" Ruth Bader Ginsburg, which is certainly what caught my eye in the first place, the series is really eye catching, cute and thought provoking. The image here is reproduced from an interesting article about the work, at Absolutely follow the link and enjoy the truly clever portraits he has made of such current and historical figures as Hilary Rodham Clinton, Rosa Parks, Harriet Tubman, Marie Curie and Jane Goodall. I have no idea what the current figures think about the images. I hope they are tickled and find the idea clever and worthwhile. The portraits are actually rather good.

The idea being explored is worth revisiting every single gift-giving season. Little girls are confronted by strong messages about beauty and body image conformity very early. They are pushed into sexy images early as well. It's not just Barbie and Bratz with totally unrealistic body dimensions. The Disney princesses, even re-worked for modern theories of empowered women are still worth discussing with little girls. Do you have to have a dainty little nose to be a princess? Do you have to be thin? Do you have to have little feet and elegant hands? How about whether you have to have swishy smooth lush shiny hair that swoops back and forth around you? Do you have to have big eyes with long lashes? What if your mouth isn't small in a cute, pointy chin, with pouty lips? What if, maybe you aren't a classic beauty? Does beauty mean you are good? Does good mean you are beautiful? These two things are sort of mixed up together in the Disney princesses, and in way too much of our little kid toy, AV and illustrated material.

I remember loving pink, and sparkles, and believing that beautiful meant good. I still like to look nice, and have come back to wearing pink after a long hiatus when I wouldn't touch it. But I think it's a very heavy and dangerous little logic trap to lay out for our children and even ourselves to show images of cute and beautiful that equate those images with goodness and flatten all other characteristics. The Disney princesses basically are flat characters who have few other characteristics beyond (recently) "empowerment," beauty and goodness. Even when they are feisty, there is not much more than that to know about them. I suppose, realistically in a shortish animated feature, we don't know much about the other characters, either. But this is why the character of Merida in Brave, who had a long-term struggle with her mother over control issues was so refreshing. She struggled for independence so fiercely, so it made it very ironic when Disney homogenized the character. She particularly did NOT want to be a standard princess crammed into a princess dress, and what did Disney do to her?


The image of Ruth Bader Ginsburg and Princess Supreme are from the article about David Trumble, who of course, did the charming art work.

The images of Princess Merida from the Pixar movie Brave and from the Disney redesign are from the petition website, the two images from by Pixar and Disney, though uncredited at the petition website.