Police hide behind privacy statutes

The Boston Globe yesterday had an article about Boston police using a Massachusetts privacy law (Mass. Gen. Law 272 section 99) that requires both parties' consent to audio or video-recording. The statute, similar to those in eleven other states, makes it illegal to record another without their consent. This meant that when Simon Glik, a lawyer in Boston, felt that he was seeing undue police violence in an arrest and began to record it with his cell phone, the police felt justified in confronting Glik, cuffing him and seizing his cell phone. And it meant that when Jon Surmacz saw police being too rough breaking up a party and began recording it with his cell phone, the same thing happened to him, charged with illegal surveillance. The Globe article is notable as being actually the product of a student co-op project at Boston University, though it covered many column inches of the front page of the paper and inside the front section as well. It's an important topic.

Both men, with the help of the ACLU, got the charges dismissed, eventually (Glik dismissal in PDF). But the mis-use of state statutes that were passed in the wake of private detectives taping individuals who had no idea of the surveillance, in order to stifle citizen push-back against police brutality is very troubling. I am very proud that Massachusetts' Chief Justice Margaret Marshall filed a strong dissent in one of the cases that went to court on this matter. Mass. v. Hyde, 750 N.E. 2nd. 963, 977 (Mass., 2001), raising the question of possible First Amendment implications in interpreting the wiretapping statute to bar citizens from recording police misconduct.

The entire matter in Massachusetts has been closely examined in a law review article which is available at Suffolk's website: Cloaking Police Misconduct in Privacy: Why the Massachusetts Anti-Wiretapping Statute Should Allow for the Surreptitious Recording of Police Officers, a 2009 note by student Lisa Skehill at 42 Suffolk U. L. Rev. 981. This article has very helpful links to newspaper and law journal articles, but mainly focuses on Massachusetts. For a student article, it takes quite a normative stance on the matter. There is also an ALR annotation that surveys state statutes on the matter, but I cannot give a link to that, only a citation, 74 ALR2d 855, Validity, Construction and Effect of State Statutes Making Wiretapping a Criminal Offense. Here is an online link to "Can We Tape?", a 50-state survey from the Reporter's Committee for Freedom of the Press.

The twelve states that have similar privacy laws requiring all parties' consent appear to include California (Cal. Penal Code §§ 631, 632, requiring ALL parties' consent), Connecticut (Conn. Gen. Stat. § 52-570d requiring ALL parties' consent), Florida (Fla. Stat. ch. 934.03, requiring all parties' consent), Maryland (See Bodoy v. North Arundel Hosp., 945 F.Supp. 890 (D. Md. 1996). Additionally, recording with criminal or tortuous purpose is illegal, regardless of consent. Md. Code Ann., Cts. & Jud. Proc. § 10-402), Massachusetts (Mass. Ann. Laws ch. 272 , § 99, requiring all parties' consent), Michigan (Mich. Comp. Laws § 750.539c), Montana (Mont. Code ann. § 45-8-213-c), Nevada (Nev. Rev. Stat. Ann. § 707.900 - misdemeanor recording without consent of all, but surreptitiously listening, recording or disclosing a conversation without consent carries heavy fines of $1,000 or $100/day, whichever is higher, and punitive damages, plus court costs, Nev. Rev. Stat. Ann § 200.630, .650), New Hampshire (N.H. Rev. Stat. Ann. § 570-A:2-I, requiring all parties' consent), Pennsylvania (18 Pa. Cons. Stat. § 5703(1), requiring consent of all parties), Texas (V.T.C.A, Civil Practice & Remedies Code § 123.001, et seq. allows civil actions to recover stiff damages, but Texas Penal Code § 16.02 allows recording by a party or with the consent of one party, so long as there is no tortious or criminal intent), Washington (Wash. Rev. Code § 9.73.030 requires consent of all parties, though can can be satisfied by one party announcing to all in any reasonably effective manner that communication or transmission is about to be recorded or transmitted, and that announcement is recorded or transmitted as well, Wash. Rev. Code § 9.73.030).

The decoration is courtesy of the Police Brutality Databank, which is a pretty good link to know about in this context, http://police-brutality-dwb.net/

Here are earlier comments and blog posts on this matter:
Pocketburgers.com: Jan. 13, 2010, which led me to:
www.FreeRepublic.com, Jan. 29, 2008, evidently, an excerpt of a Massachusetts Lawyers' Weekly newspaper story from the time. It notes that Glik is a Moscow-born attorney, which makes his push-back against the police more poignant. It also reminds me to explain to my OOTJ readers that our Massachusetts Chief Justice, Margaret Marshall, comes from South Africa, where she was an anti-apartheid activist before she emigrated here. So her dissent in the Hyde case carries a special force. She understands on a personal level the importance of free citizens pushing back against the force of government when it is used unjustly.

Save Connecticut State Libraries! Act now!

As you may have already heard, Connecticut's Executive Branch has cut $12.9 million in the budget for the Judicial Branch, forcing the proposed closure of six law libraries across the state. The American Association of Law Libraries and the Southern New England Law Librarians Association are urging residents of Connecticut to join efforts in saving the law libraries of Bridgeport, Litchfield, Milford and Norwich. These courthouse libraries serve to meet a diverse range of legal research needs from the judiciary, corporate and government attorneys, solo practitioners, average citizens and the indigent.

If you are a resident of Connecticut, please join the effort to encourage the Connecticut legislature to provide the Judicial Branch with adequate funding to keep these libraries open by signing these online petitions:

http://www.ipetitions.com/petition/savebridgeportcourtlibrary/


http://www.ipetitions.com/petition/savelitchfieldcourtlibrary/


http://www.ipetitions.com/petition/savemilfordcourtlibrary/


http://www.ipetitions.com/petition/savenorwichcourtlibrary/


Please feel free to forward these petition links to friends or colleagues living within Connecticut who may also be interested.

If you have any questions, please email AALL Government Relations Chair Camilla Tubbs or Mary Alice Baish at the Government Relations Office .

Thank you for your time,
Camilla Tubbs
AALL Government Relations Chair

Gay Marriage in California - Law Suit Challenging Prop. 8

Two gay couples in California filed suit May, 2009 in federal court in the Northern District of California challenging Proposition 8, the voter-approved ban on gay marriage in that state. Originally, the California court had allowed the proceedings to be viewed over YouTube. But the U.S. Supreme Court has blocked that ruling, at the request of supporters of Proposition 8, who intervened in the law suit. You can get the full text of the documents of the case, including hearing transcripts at the site of www.EqualRightsFoundation.org, which seems to have been formed as a 501(c)(3) corporation specially to challenge Prop 8. The website includes not only plaintiffs' and defendant's legal filings, but also links to news and media.

There have been several statements by gay rights activists concerned that this is a dangerous time to file such a suit, which will almost certainly go to the U.S. Supreme Court eventually. The case is styled Perry v. Schwarzenegger. S.F. Gate.com offers one such article

Co-sponsored by nine gay and civil liberties organizations - including the American Civil Liberties Union, the Human Rights Campaign, the National Center for Lesbian Rights and Lambda Legal - the memo said "even the strongest gay-rights decision the court has issued - the Lawrence v. Texas case striking down laws against intimacy for gay couples - explicitly commented that it was not saying anything about formal recognition of same-sex relationships."

"There is much we can and should do together to strengthen our hand before we put a federal marriage case before the justices," the memo said.

The National Center for Lesbian Rights has links with PDF documents for the amicus briefs they have filed in the case and nice summaries of the issues and history of the case, and other helpful links to articles and such. Lambda Legal offers a link with the amicus brief they authored with ACLU and NCLR.

Family Research Council offers its amicus brief here. Scribd (Michael Ginsborg (hi!)) thoughtfully posts "selected" documents from the Perry case here, which today include a number of commentaries. I am not certain I have located all the amici in this sweep, but I have tried. There seems to be very divided opinion on the wisdom of this law suit and its timing. My heart goes out to the folks in California who have had same sex marriage handed to them in San Francisco and then torn away through Proposition 8. I only hope that this law suit does not do lasting damage to the cause of gay marriage in California and elsewhere!

Blio E-reader update

Blio e-reader from Ray Kurzweil caused a lot of buzz before it has been released. It still is not here, though their own website is up and you can sign up for alerts and to be told when it's available. Blio is platform-neutral software that will allow you to read e-books in PDF format on any internet accessible electronic device from your I-pod or cell phone or PDA to your computer or netbook. Because it downloads the books in PDF format, it retains the look of the print book, including graphics and full color. Blio is free to download, and many of the texts you get are free as well, depending on the copyright situation. Millions of titles are available right now, and more are becoming available, from cookbooks to bestsellers to childrend's books to certain school textbooks (not law books as far as I can tell right now).

More interestingly, you can page through the book and retain the pagination. You can insert highlighting and marginal notes. You can even insert videos and hyperlinks if you want. Blio offers a very high quality read-aloud feature, though apparently not for all books. The read-aloud co-ordinates with highlighting certain words, which would be very helpful for those learning to read or learning a language, for instance. Ray Kurzweil has been working for quite a while with the visually disabled community, so this audio feature is something he cares about and has accommodated very well. According to the Blio website

Blio’s active reading tools deepen comprehension, adding dimensionality to your reading. Highlighting, underlining, and annotating help emphasize information in your mind and let you review important points later:

* Create a personalized list of reference websites, for one-touch look-up of highlighted phrases.
* Adjust reading speed and font size.
* Translate to or from English in an imbedded translation window.
* Insert text, drawing, voice, image or video notes directly into your content. These are saved, and can be exported to create lists or study materials.

This same webpage also includes a detailed comparison between a wide variety of e-readers. Of course, it's set up by the Blio people, but it does compare many features that are worth thinking about, from cost, to display features, to variety of platforms, storage, titles available, read-aloud, page-turning, how many pages displayed at once, tiled views, video capability, interactive, and the "study aids" noted above.

Blio is not the only free e-reader, as I noted in my earlier post. I know about Kobo, another platform-independent, free e-reader with free or low-cost books. The free books are those out of copyright, mostly, but also include some newer books that appear to have been released for use by the copyright holder. Other titles cost $9.99. These seem to be best-sellers, self-help, mystery, and other categories. They have a bookstore you can browse by category. But as far as I can tell, from a law librarian's point of view, Kobo lacks the useful tools that Blio offers a law student or scholar for highlighting, knowing what page you are on, making notes in the text, and seeing the graphics as they appear in the original text. Kobo also does not appear to have any audio feature.

The End of Free Content?

This time of year, predictions abound, but most of them turn out to be wide of the mark. However, this prediction, from Newsweek's Techtonic Shifts Blog, has the ring of truth about it. In his post, Barrett Sheridan states that "Many of the startups and media sites that define the e-commerce ecosystem are, at long last, making serious plans to make serious money." He lists Hulu and music sites, including iTunes. Apple recently purchased Lala, a streaming music service, for around $100,000,000. Sheridan opines that Apple bought Lala for "its talented engineers and their cloudy expertise," not for its revenues, which are "negligible."

Owners of print media are also exploring their options. Rupert Murdoch, the owner of News Corporation, is actively exploring put his news sites behind a pay wall this year. According to Sheridan, "That would open the door for competitors to make the same move. The New York Times, for instance, is debating the wisdom of charging for online content too. If Murdoch's plan proves successful, emboldened newspapers and magazines across the country would begin erecting their own digital pay walls." As a consumer, I hate the idea of having to pay for content; I am accustomed to getting it for free. As Sheridan puts it, "Pirate Bay-surfing teens ... think free content is a human right only slightly less essential than oxygen." As a librarian, however, I understand that the only way to ensure the viability of high-quality content, which costs a lot of money to produce, is to put it on a paid footing.

New Survey on Law Student Engagement

The 2009 Law School Survey of Student Engagement was just published. The report, which has been issued annually for the last five years, is based on input from over 26,000 law students at 82 different law schools. Not surprisingly, the economy figures prominently in the survey. More students than ever are graduating with over $120,000 in debt--a staggering figure by any measure. Fewer students now expect to practice in a private law firm than in the past, with a growing percentage of students expressing interest in public-interest or government positions. I wonder how they will pay off those huge loans with the lower salaries that public-interest and government lawyers usually command? Other insights from the report (courtesy of The Chronicle of Higher Education, Jan. 6, 2010):

Students who are not involved in extracurricular activities study less than their peers and more frequently come to class unprepared.

More than one-third of all law students say that their legal education places little emphasis on acting with integrity in personal and professional settings.

Only about half of all law students frequently receive feedback from their professors that is helpful to their academic development.

Ten percent of law students say they never receive feedback from professors that stimulates their interest in the study or practice of law.

Male students are more likely than female students to receive oral feedback from professors, both during class and outside of class.

Frankly, the findings on the lack of meaningful feedback from professors surprised and discouraged me, as did the observation about the lack of emphasis on personal and professional integrity, because I assumed most schools were paying a lot of attention to professional responsibility. I don't know what to say about the lack of feedback. How can students learn without it?

New Electronic Reader from Kurzweil - Blio

Wired.com reported on Dec. 28 that Ray Kurzweil has reinvented the electronic book as a platform that sits on any type of device, from a PC to an I-pod to a cell phone or PDA or one of the newly developed tablet devices. SingularityHub has another story on the same product with some more detail. The Blio is due to debut at International CESweb.org this January 7-10 in Las Vegas, so it has not come out yet, but is due out very soon. Blio preserves text's lay-out, including color and images, including graphics and images. It includes high quality text to speech capability (Kurzweil has worked closely with the visually disabled community).

You can even synchronize a PDF with an audio book to get read-along highlighting. By focusing on the software, and not trying to maintain a hardware device, Kurzweil hopes to provide the most versatile, life-like electronic version of print books and enhance them with multimedia. Best of all, Blio is free.

The race to dominate the electronic reader market is really just starting up. Kindle and Amazon have a firm lead but Stanza, Barnes and Noble, Sony, and Samsung are all staying competitive, not to mention potential tablets from Apple and a host of other companies. Heck, for that matter, the PDF format itself is doing very well and provides much of the same experience as an e-reader for many users. While hardware evolution has focused on the best uses of e-ink or the fastest download times, software is all about formatting. How does the book look? Can I read it the way I want to? Are diagrams legible? By preserving original publishing page layouts, Blio may be providing the nearest experience to actually reading a print book you can find. Of course, the question remains, is that what we really want? As traditional media continues to struggle and new media tries to figure out what it wants to be when it grows up, there’s no clear understanding of how and what humans will be reading in the next decade.

Yet even if e-readers turn out to be a transitional medium, they are still exerting a powerful influence. Best selling electronic books on Amazon are usually free, or very cheap. This may force publishers to rethink how they make money off their products. Which is why it makes so much sense for Blio to be free as well. The e-reader can be uploaded onto an iPhone or kept on your desktop. From there, users will be able to purchase reading materials at whatever price becomes feasible.

Available books will start with an extensive catalog from Baker & Taylor which should include 50,000+ volumes in January and 180,000+ soon there after. Information released from knfb (see table below) seems to suggest that more than a million books will be available in one format or another. Kurzweil and knfb are working with Google to try to make their extensive catalog of printed materials available for Blio. They are also aiming to have major publishers port their books into PDF for free. Apparently you don’t have to worry about being stuck without something to read.

(from SingularityHub review) That link on the extensive catalog from Baker and Taylor takes you to an interesting blog post on the publishing business aspect of this deal at http://industry.bnet.com Nothing in the reviews so far address whether Blio will address the academic law market concerns about e-readers. For instance, there are really not titles of direct interest to law libraries in any of these catalogs yet. And none of these readers will allow readers or researchers who own an e-book to mark passages with highlighters or maker marginal notes or link from the e-text to notes. However, the Blio's excellent audio capability and ability to highlight text as the audio plays hints at some possibilities there. This will be interesting to watch! Link to either of the reviews from Wired.com or from SingularityHub to see interesting graphs that show comparisons between the existing readers on the market, including Blio. There is also a video at SingularityHub, that is worth watching.

Of course, Blio is far from the only electronic reading software out there available for free. See Kobo which is also platform independent. Adobe Digital Editions is the format they use, another pdf, providing $9.99 best sellers and free books out of copyright to your smartphone, e-reader, Mac or PC. As far as I can tell, Kobo does not have any audio capability, nor any highlighting or margin notes ability. But it's free!

Death Penalty Undermined

The New York Times is reporting "a tectonic shift in legal theory"--the American Law Institute's announcement that it is abandoning the framework it created in 1962 in an "effort to make the death penalty less arbitrary." Section 210.6 of the Model Penal Code, which created the "intellectual framework for the modern capital justice system, has been withdrawn by the ALI "in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment." Click here to read a message from ALI Director Lance Liebman and here to read the Report of the Council to the Membership of the ALI on this subject. The New York Times has a pithy summary of the reason underlying ALI's action: "What the institute was saying is that the capital justice system in the United States is irretrievably broken."

According to the ALI, what are the problems with the capital justice system? 1.) It is impossible to "reconcile the twin goals of individualized decisions about who should be executed and systemic fairness." 2.) Racial disparities in administering capital punishment persist. 3.) The system is extremely expensive. 4.) There is a serious risk of executing the innocent. 5.) The system is "undermined by the politics that come with judicial elections."

Opponents of the death penalty had hoped that the ALI would "take a stand against the death penalty as such [but] that effort failed." Nonetheless, the ALI's action is important, according to Professor Franklin E. Zimring, expert on criminal law and the death penalty, "'because they were the only intellectually respectable support for the death penalty system in the United States.'" Zimring went on to say that ALI's action is "'very bad news for the continued legitimacy of the death penalty ... But it's the kind of bad news that has many more implications for the long term than for next week or the next term of the Supreme Court.'"

Limited Representation--An Idea Whose Time Has Come?

This New York Times editorial, written by New Hampshire Chief Justice John T. Broderick, Jr. and California Chief Justice Ronald M. George, makes a cogent argument for closing the "justice gap" by unbundling legal services. Observing that many litigants can no longer afford legal representation, the two justices voice their support for so-called limited scope representation which allows attorneys to "take only part of a case, a cost-saving practice ... that, with proper ethical safeguards, is responsive to new realities." Limited scope representation is the subject of ABA Model Rule of Professional Conduct 1.2, adopted by forty-one states, which provides that "A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent." The ABA Section of Litigation recently released the report of the Modest Means Task Force, which concluded that the time was ripe to move ahead with this initiative. The alternative is that many litigants will have no representation whatsoever. As Chief Justices Broderick and George conclude,

... [F]or those whose only option is to go it alone, at least some limited, affordable time witn a lawyer is a valuable option we should all encourage.

In fact, we belileve that limited-scope-representation rules will allow lawyers--especially sole practitioners--to service people who might otherwise have never sought legal assistance. We also believe that carefully drafted ethical rules allowing laywers to handle part of a case give the legal profession an opportunity to help the courts address the ever-growing number of litigants who cross our thresholds. This cause has special relevance now as state courts are faced with serious cutbacks in finacing, forcing some to close their doors one day a week or a month, lay off front-line staff members and delay jury trials. None of this bodes well for the judicial system or for those seeking to vindicate their rights through the courts, whether they have a lawyer or not.

We need members of the legal profession to join with us ... in meeting this challenge by making unbundled legal services and other innovative solutions--like self-help Web sites, online assistance programs and court self-help centers--work for all who need them.

The Old Brain

There has been a lot of information published about how students in their teens and twenties learn as well as strategies that instructors can adopt to increase their pedagogical effectiveness. Certainly this is important information--I know how much I have benefited as a teacher from these insights. Nonetheless, it was interesting for me to read this article from today's New York Times Education Life section on how older people learn. I must confess that I have a personal interest in this subject, not only because I occasionally have students who are not of traditional law-school age, but also because I often need to learn new things and sometimes find that to be a bit of a challenge. Is it fair to blame this difficulty on the fact that I am getting older?

According to the article,

Brains in middle age, which, with increased life spans, now stretches from the 40s to the late 60s, [...] get more easily distracted. ...

[C]an an old brain learn, and then remember what it learns? Put another way, is this a brain that should be in school?

As it happens, yes. While it's tempting to focus on the flaws in older brains, that inducement overlooks how capable they've become. Over the past several years, scientists have looked deeper into how brains age and confirmed that they continue to develop through and beyond middle age.

Many longheld views, including the one that 40 percent of brain cells are lost, have been overturned. What is stuffed into your head may not have vanished but has simply been squirreled away in the folds of your neurons.

[This can make it difficult to retrieve information because] neural connections, which receive, process and transmit information, can weaken with disuse or age.

The article offers some specific recommendations for adults to employ to make it easier to retrieve information, connect new information with what is already known, and keep our brains in shape. For one thing, we can actively seek out ideas and thoughts that are contrary to what we believe.

Teaching new facts should not be the focus of adult education ... Instead, continued brain development and a richer form of learning may require that you 'bump up against people and ideas' that are different. In a history class, that might mean reading multiple viewpoints, and then prying open brain networks by reflecting on how what was learned has changed your view of the world.

Learning a foreign language, taking a different route to work, doing anything that causes the brain to stretch is how we nourish our brains and keep them young.