First, the promise. MOOCs have been touted as expanding access to education. This is surely a worthwhile goal. But it is necessary to ask what is being provided. What kinds of education can MOOCs offer? The basic feature of MOOCs is making videos available in a structured format, along with perhaps some reading, some online discussions moderated by TAs, and discussion boards. Notably, this doesn’t replicate the kind of interactive experience that can happen in a physical classroom, where students can interrupt with questions or comments, and in which a good lecturer can engage with the room. Where education works, the students are not just an audience – they are active participants. MOOCs can allow some of this around the edges, but not to the same degree.

There is certainly something worthwhile in having a structured syllabus, thoughtful lectures, and tailored reading assignments. That goes without saying. But the transmission of information is not the same as education. Nor, for that matter, is the mere availability of information the same as understanding. The vision of MOOCs as a way to bring education closer to the broadcast model is of a piece with the by-now-familiar reduction of most interesting things to mere data.

But this bland, corporatized vision of education is not the only force within MOOC-world. The key element, and a contested one at that, is the word “open.” Openness suggests a level of interactivity and of pushing back that could be very healthy for education, if it is allowed to go forward. But the forces of openness and hackability have been met by the impulse to propertize courses. If we wish to be honest in our terminology, we may wish to call them “MOCs,” as they mock the ideal of openness. A class that is massive and online is presumably less appealing for students than one that is also “open.”

But classes that are massive an online are probably immensely appealing to the class of educational bureaucrats and education “policy” people who view education as an instrumental means to achieve competitiveness without talking about pervasive and systemic problems of inequality.

Hence my belief that MOOCs are of a piece with the turn to adjunct labor in higher education and the growing stratification between those students who get to be instructed by permanent faculty in real, live classes, and those who will get to be taught by part-timers who have no prospects of permanent employment, working off of pre-fab courses taught by celebrity profs (see the thoughtful exchange between the San Jose State University philosophy department and Michael Sandel). No doubt it can be very inspiring to see the nation’s best lecturers in action, and the access that these platforms provide is fantastic. But it does not constitute education. Education cannot be seamless; education cannot be smooth. Education is about being challenged by running into difficulty and confusion, and gradually making sense of it. Education requires friction in order to actually learn and digest the material and to make it one’s own. Education is not about the celebrity professors; it is about the students. It is not about imparting information from on high; it is about confronting the hard problems that are posed by being part of the natural world, or part of the social world, or part of a world of ideas.

So, my problem is not so much with MOOCs themselves (who could fault the desire to make thoughtful lectures and information available to the public?), than with the idea that these are the future of education. As a component of an education, they can be immensely valuable. But if they become a shortcut to teach larger classes with fewer resources, or a way to redesign education on the model of broadcast, they will be pernicious elements of the educational landscape, particularly in the context of legal education. Far from leveling the educational playing field, MOOCs have the potential to create even greater stratification.

Whether in the context of legal education or of undergraduate education, or otherwise, it is important to keep in mind what education is for. For those of us who want robust access to education, the internet can certainly help us in realizing that goal. But it would be deeply unfortunate if the drive for increased access led to an evisceration of the educational experience itself.

photo by LizMarie on Flickr

I’ve been thinking about a number of interesting angles that these events have brought into focus as our society tries to generate a positive response. I invite any readers of the blog or any members of the CRCL community to add their thoughts, either in comments or in their own posts. One issue, surely, is to cultivate empathy through the recognition that the feelings of fear and anger and sorrow experienced within our community are also experienced around the world on a daily basis. Obviously the harms within our immediate community will resonate more strongly than those far away—but this can prompt reflection about the pains experienced by others, and to think about the connections between domestic and international security.

Surveillance is another issue that will surely need to be addressed in the coming weeks; some will, no doubt, call for more widespread surveillance as a way to more easily and quickly identify people of interest, while others may argue against granting greater surveillance powers to the state. It’s unclear to me what the full implications of either of these positions are. As creeped out by surveillance as I am (and trust me, I’ve spent way too much time reading or watching dystopian sci-fi stories to be anything but creeped out), the people-powered (rather than government-led) response, as seen on Reddit, hardly inspires confidence. The alternative to state surveillance may more closely resemble vigilantism than actual protection of personal liberties. For those of us who are interested in protecting civil liberties in today’s wired and decentralized world, it is probably more valuable to find ways of doing so within the likely scenarios of greater surveillance, rather than just pushing back against surveillance in the first place.

The notion that Tsarnaev should be detained as an enemy combatant has been criticized extensively elsewhere, and I don’t want to lend any additional space to bizarre conservative posturing.

But then there’s the issue of the public safety exception and Miranda. The exception allows for questioning before hearing Miranda rights in the face of a threat to public safety. To the extent that there may be additional explosive devices in the Boston area, this would probably fall within the exception. But, as Emily Bazelon writes, the DOJ has a policy of continuing unwarned questioning beyond the immediate confines of the public safety exception when the FBI and DOJ deem this necessary. And it looks like this policy may be followed in this instance. If the public safety exception is being stretched, this seems problematic. The threat to the public here is, thankfully, resolved. As the legal mechanisms kick in now, our job as individuals concerned with the civil rights protected by the Constitution should be to protect Tsarnaev’s fair trial rights. We don’t know exactly what the motivations of the bombers were, but part of maintaining our resilience in the face of this kind of attack is not deforming our legal system in the name of vengeance. That is no way to honor those who put themselves at risk as first responders and as public safety officials.

photo by Craig Stevens <castevens12> on Flickr

The curious thing about this buildup is that the Internet is not someplace “out there,” like Afghanistan, or China, or Niger, or Mexico. Cyberspace is not a space external to the United States. The spatial metaphor needs unpacking, now that its resolution has actual consequences for various elements of privacy laws. I want to raise the possibility of thinking of cyberspace not only as a space that is at least partly internal to the United States, but as a space that is at least partly internal to the home. My claim is that the proposed increase in surveillance and defense activity on the Internet not only implicates potential Fourth Amendment privacy concerns, but also rehabilitates the moribund Third Amendment’s protections against the intrusion of military into the home.

The Third Amendment? Yes. I’ll wait.

The amendment speaks of quartering soldiers, and of course there are no proposals for physically installing NSA agents into every home. But some proposals for the future of cybersecurity do suggest that the NSA will inhabit the Internet: every time you open up your laptop you will be able to feel its comforting presence.

It is worth recalling the Third Amendment’s origins in protecting the house-as-castle against the forced billeting of soldiers. The presence of soldiers was a constant reminder of the state’s military power, as well as a direct invasion of privacy. While much of contemporary privacy law deals with the Fourth Amendment’s role in limiting the powers exercised in pursuit of the legitimate need for police investigations, the Third Amendment fills a distinct space in the constellation of civil liberties. The Third Amendment recognizes the fundamental insecurity of the individual home against the power of the state, and even if the agents of the state are not doing anything per se objectionable, their mere presence signifies the power of the state and is, in itself, a violation of privacy.

My claim is that putting the network under the watchful eyes of the military runs the risk of implicating the Third Amendment. There are two primary textual objections: the Amendment refers to “houses,” not laptops; and the Amendment speaks of “quartering,” not monitoring. This is where I think a frank recognition of the changed realities of the present day are necessary. I would argue that laptops might fall within the ambit of the Third Amendment. While they may be used outside of the house, they may also be brought directly inside. Perhaps we have no real expectations of privacy on the Internet, but that doesn’t change the recognition that in some future cybersecurity scenario you could potentially be interacting (in some sense) with the NSA whenever you open your laptop at home. The range of essential activities (including highly personal ones) that take place on the net suggest some privileged role for these technological platforms. As for the issue of quartering, it seems within reason (or at least not too far beyond reason) to argue that any cybersecurity initiatives that affect the operations of home Internet connections should fall within this language. Quartering suggests both presence and some impact on the material situation of the home, and could be satisfied by the continued presence (however discontinuous) of the NSA within the network, particularly if there is some degradation of network traffic. Both of these requirements could be met by a liberal interpretation of the Amendment under this scenario.

Whether or not the Third Amendment is actually implicated will rest on the implementation of these cybersecurity proposals. The farther upstream these defenses are implemented, the less intrusive they will be. But if these defenses are implemented in such a way as to allow some state intervention into personal machines, the Third Amendment may be triggered.

Normatively, the Third Amendment provides an important check on the expanded reach of the state (and, in particular, of the military) into the everyday. To the extent that home Internet devices become a front in potential cyberwars, the defense establishment will need to pay attention. But it will need to craft its policies carefully in order to avoid bringing its military powers to bear within the home. It is because the Internet redefines the space of conflict and redefines the potentials for intervention that the boundary between the home and the outside world has become more problematic to navigate. In this political and technological context, the forgotten Third Amendment may provide an important check on the reach of state intervention.

Guest Post by Jacob Alderdice, HLS ’14

Harvard PLAP Panel on Solitary Confinement

Solitary confinement, a practice that has been under scrutiny for hundreds of years, continues to be widespread within United States prisons.  Despite abundant medical literature detailing the severe and disastrous effects such isolation can cause, correctional institutions continue to utilize this practice on thousands of incarcerated people.  Advocates have filed lawsuits and spoken out to try to bring this issue to the forefront of the public mind.

On Monday, February 25^th, the Harvard Prison Legal Assistance Project (PLAP), along with several co-sponsors, hosted a panel on Solitary Confinement.  HLS students and PLAP Policy Coordinators Jeanne Segil ’14 and Sia Henry ’14 put the event together, assembling a panel of experts that encompassed several sides of the issue.

Over one hundred students, activists, and outside community members filled Austin West to capacity and then some to see the panel moderated by Matthew Segal, the Legal Director of the ACLU Foundation of Massachusetts.  The panel included:

Professor Jules Lobel, the President of the Center for Constitutional Rights, who has been leading litigation challenging U.S. solitary confinement practices under the 8^th Amendment’s prohibition of “cruel and unusual punishment” and the 14^th Amendment’s guarantee of due process;

Dr. Stuart Grassian, a psychiatrist who has extensively researched the psychological effects of solitary confinement;

Bobby Dellelo, an activist working for the American Friends Service Committee’s Criminal Justice Program, who experienced solitary confinement in Massachusetts; and

Mikail DeVeaux, the Executive Director and Founder of Citizens Against Recidivism, a New York City community organization advocating for both incarcerated people and their families.

A powerful and moving conversation ensued among the five men.

“Just Describing the Situation Seems to Define Cruelty”

Professor Lobel introduced the topic of solitary confinement by describing one of his legal battles in the field.  An Ohio district court judge declared that the informal procedures for placing people into solitary confinement in a Youngstown, Ohio Supermax were a violation of their procedural due process.  The Supermax, a term for the highest security prison, had been placing people into solitary confinement without hearings, including many mentally ill people and “people that didn’t belong” in solitary confinement.  After the ruling, the institution conducted hearings and reduced the amount of people in solitary from 500 to 50, seemingly affirming that many of the people indeed did not belong there.  Yet the Supreme Court later overturned the district court’s decision, holding that the original informal procedures were sufficient.

Professor Lobel introduced a recurring motif for the night: the shocking nature of solitary confinement being met with judicial and institutional apathy.  80,000 people are in solitary confinement nationwide, 25,000 of them in Supermax prisons, and 1,000 of them in Pelican Bay State Prison alone, a California Supermax.  The Center for Constitutional Rights filed a lawsuit last year against the California Department of Corrections, alleging that the solitary confinement practices of Pelican Bay violate the 8^th Amendment’s prohibition of “cruel and unusual punishment,” and the 14^th Amendment’s guarantees of due process.

The 1,000 people in solitary in Pelican Bay remain in windowless cells for twenty-three hours a day.  For the remaining hour, they are put into “recreation” cells, with twelve-foot walls and wire mesh covering the ceiling, blocking natural light.  The cells used to be empty of any items used for recreation.  After the inmates led a hunger strike, there is now a ball in the cells.  During their time in solitary, incarcerated individuals are unable to receive visitors and prohibited from engaging in programs, thus cutting off any meaningful activity or interaction with the outside world.  Some of the people put into this isolation were put there due to dangerous, violent behavior.  But many were put there solely out of a concern that they are gang-affiliated.  For example, some inmates were placed into solitary confinement after correctional officers found posters in their rooms of George Jackson, a renowned author and prison activist.

Of the 1,000 people in isolation at Pelican Bay, 500 have been there for ten years or more.  100 have been there for over twenty years.  A United Nations inquiry into solitary confinement established a limit at which the treatment becomes torture: 15 days.  Professor Lobel noted, “Just describing the situation seems to define cruelty.”  However, “courts are demanding more.”  Courts are not satisfied with “mere” mental anguish and suffering.  The 1996 Prison Litigation Reform Act narrowly defines injury, requiring physical injury or serious mental illness for a prisoner to receive damages.  Professor Lobel ended by noting that if the torture conducted at Abu Ghraib, including sensory deprivation, humiliation, and waterboarding, had occurred in the United States, the prisoners would not have an 8^th Amendment claim available to them due to the Prison Litigation Reform Act.

“The Prisons Refuse to Look”

After noting that the “torture” of solitary confinement is “far greater than physical pain,” Dr. Stuart Grassian explained how people in the prison system are well aware of these effects, but actively ignore them.  Dr. Grassian supported this by pointing at the extensive history of documentation of the severely harmful effects of solitary confinement.  As early as colonial America, the Puritans experimented with solitary confinement.  They believed this type of forced isolation would be a “monastic experience,” allowing people to repent (thus the name “penitentiaries”).  This experiment was a disaster, resulting in case after case of psychosis and suicide.

This experience remained in the collective American conscience, as late as an 1890 Supreme Court case.  Dr. Grassian described the case of James Medley, a Colorado man that was convicted of murdering his wife.  Instead of being hanged immediately, he was placed in solitary confinement for a term of zero to forty-five days, to be held before his hanging.  In the case of In Re Medley, the Supreme Court declared this additional sentence unconstitutional, stating that “experience demonstrated that there were serious objections” to solitary confinement.  Describing the sordid history of the practice, the Court was so struck by the punishment that they let Mr. Medley, a convicted murderer, go free.

Dr. Grassian also cited modern research into the severe effects of confinement.  Research conducted during the Korean War by Harvard psychologists and funded by the United States, demonstrated the extreme effects of sensory deprivation.  There is also an abundance of “common medical literature” describing the effects of similar phenomena, such as ICU (Intensive Care Unit) psychosis, and visual impairment.  While the American prison system has shown no concern about the effects of this treatment, the Navy and NASA, concerned for the effects of people in deep sea and space isolation, have commissioned many studies and taken many precautions.  Dr. Grassian emphasized the “readily accessible medical literature” that was available from all of these studies, but lamented that “prisons refuse to look.”

“Monster Factories”

Bobby Dellelo began by trying to help everyone picture themselves in a cell, alone.  He spent five years in solitary confinement in Walpole, Massachusetts, in what is called the Departmental Disciplinary Unit (DDU).  He described how the cells feel “huge”, and that “you become small” in them.  Although Professor Lobel said his clients are typically in the cells for 23 hours a day, Dellelo said it more often became 24 hours a day.  For many different reasons, people would not be taken out all day.  He went on to describe the “highly toxic environment” of solitary confinement that affects the individual, the guard, and the administration.

Once he had been removed from human interaction, Dellelo could no longer function the few times he was able to see people.  When his lawyer came to visit, he would look away for a moment, then look back and completely lose the conversation.  No longer able to maintain conversation, he would become paranoid and disturbed until he returned to his cell.

At night, Mr. Dellelo was jolted awake every forty-five minutes to an hour by the blaring buzzer that would go off every time the correctional officers entered on patrol.  The officers’ footsteps would echo through the halls, as other inmates began yelling.  As the effects of the isolation and sleep deprivation built up, smaller noises started to become words.  The soft buzzing of the radiator started as “eeeeehhhhhh” but turned into “whatareyoudoing whatareyoudoing killyourself.”  Dellelo noted, “There is no doubt I was crazy.”

Adding to these feelings of psychosis was the “unbearable rage” Mr. Dellelo felt towards the correctional officers.  “They would toss my cell every time I left,” he said.  When he returned to his cell, the legal materials that he spent all day organizing would be out of order.  The area outside the cells was considerably warmer than inside the cells, so the officers would turn the temperature down to stay comfortable.  This left the inmates freezing inside of the cells.  Near the cells, there was a gym intended for the inmates (“We couldn’t use it. The guards used it.”), and a dining room (“We couldn’t use it. The guards used it.”)  Dellelo was driven to fantasizing about attacking and brutally murdering the officers.  He reflected, “I didn’t know how much of me was going to be left inside.”

Mr. Dellelo acknowledged the rationale for separating some people.  He admitted he was an “escape artist.”  “You put me in minimum security, I’m gone,” he said, waving his hand goodbye.  “But why can’t you separate people in a humane way?”  He pointed to Maine, which removed 70 percent of its segregated population from solitary confinement and has not encountered any serious problems with violence.

Dellelo now has Post Traumatic Stress Disorder, which he says is “happening to everyone” that has spent extensive time in solitary.  He remembered the people that were already seriously mentally ill that were placed in DDU, that would do things like put feces in their mouth and “spit feces at each other” when they were taken out.   Calling the solitary confinement units “monster factories”, he wondered, “Do you want people better or worse when they return to the community?”

“One of The People, Not One of Those People”

Mikail DeVeaux’s remarks contrasted with the other speakers’ description of the problems of solitary confinement. Rather than detailing the abuse and effects of the issue, he took an advocate’s perspective and focused on what we can do to facilitate change.  He set the tone of the night by reminding everyone that we must not just think of incarcerated individuals as “prisoners”, but rather as people, in order to avoid the “not like them mentality” that often surrounds incarcerated people.  If even advocates for incarcerated people think of prisoners as “others”, if they work in isolation from the community of incarcerated and formerly-incarcerated people, then it becomes more difficult to convince the public that the suffering of “prisoners” is something that they should care about.

Mr. DeVeaux emphasized this point while mentioning that a flyer for the panel had originally noted that he had spent time in Sing Sing Correctional Facility in New York.  DeVeaux requested this part of the flyer to be removed.  He had indeed been in Sing Sing; he had also been in Green Haven, Comstock, Clinton, Auburn and other prisons in New York.  He spent time in solitary confinement.  But he strove while in prison to “not become institutionalized.”

Knowing that he “could not win physically” against the guards, he fought to stay alive mentally; reading and trying to maintain a connection to the outside world.  He said that talking to people on the outside and reading authors like George Jackson “helps you to see yourself in the larger context.”  He had come from an impoverished background, living in Harlem with underfunded public schools.  Once DeVeaux saw the bigger picture, it helped him lift himself up, acquire a college education and become a successful advocate both inside and outside of prison.

“Change How People Think, Then Organize, Then Mobilize”

When asked how we can achieve victories in the movement against solitary confinement, Professor Lobel pointed out that while courts have been “reasonably bad” in the area, there were some signs that “the tide has turned.”  While even some liberal judges have upheld solitary confinement practices in the past, the “perceptible abuse” of the practices is now “rankling courts.”  He referenced a Louisiana case, the “Angola Three”, in which three prison activists had been solitarily confined for an alleged murder, two of them for forty years.  Their civil lawsuit recently survived a motion to dismiss.  Lobel stated simply that courts must recognize that solitary confinement “deprives people of a fundamental need of human interaction.”

Dr. Grassian began speaking to the same point, suggesting that “courts need to embrace more fully the psychiatric pain” caused by solitary confinement.  Mr. DeVeaux then jumped in, saying it “can’t just be the courts or the lawyers” forcing the change.  “We need all the players at the table for these cases, including the community.”  He exhorted the large crowd of people in the room to “get involved.”  Change would come “if the general public were more aware.  They need to get it.”  This is why people cannot have the “they’re not us” reaction to incarcerated people.  “We have to change how people think.  Then organize them, then mobilize them.”

Professor Lobel pointed to the recent hunger strikes organized by Pelican Bay prisoners as a way of trying to get the public’s attention.  He ended by suggesting alternatives to the current system.  Correctional institutions can still have some segregation without it being an “exaggerated response to alleged gang affiliation” and while “doing it in a humane way.”  The CCR’s California lawsuit suggests that “if someone commits a serious crime in prison, they can get a sentence of a limited (not indeterminate) amount of time in solitary.”  He offered another alternative, but one that he acknowledged had not gotten much traction in court: “Studies show that if you just treat people with respect, they are less likely to react violently.”

Ways to Get Involved

In response to Mr. Deveaux’s challenge to the crowd to get involved, Matthew Segal turned to members of the crowd that are involved in prisoners’ rights and solitary confinement advocacy.  Links to their organizations are below.

Prisoners’ Legal Services: http://www.plsma.org/

Physicians for Human Rights: http://physiciansforhumanrights.org/issues/torture/

American Friends Service Committee: http://afsc.org/goal/healing-justice

Between the Bars: https://betweenthebars.org/campaigns/solitary-panel/

Related Links:

On Bobby Dellelo (and Solitary Confinement Generally): http://www.newyorker.com/reporting/2009/03/30/090330fa_fact_gawande

On Pelican Bay Lawsuit: http://www.huffingtonpost.com/2012/05/31/pelican-bay-lawsuit-solitary-confinement_n_1560918.html

On the “Angola 3”: http://www.guardian.co.uk/commentisfree/cifamerica/2011/apr/05/angola-three-louisiana

Today, however, it seems an answer to this question has never been more pressing. To see why, one need only consider the dilemma facing Saadiq Long. Last November, Long, a U.S. citizen and navy veteran who had been working in Qatar, was prevented from flying back to the United States to his home state of Oklahoma. For six months Long attempted to figure out how he would return in order to visit his sick mother. However, just two weeks after Glen Greenwald of the Guardian wrote an article describing his plight, he was able to board a flight back home.

Long’s story would not be as noteworthy were it not for the fact that he was again denied a boarding pass when attempted to return back to Qatar from Oklahoma. As the Latif case describes, the frequency of U.S. citizens and permanent residents being stranded abroad is not insignificant. So even though Long’s family and legal team filed a redress with the Department of Homeland Security, started a petition which garnered thousands of signatures, and sent advanced notice to the FBI of his itinerary, he was once again placed right back on the No-Fly list. It is thus unsurprising that when Long was asked by AP reporters what he would now do while his wife and kids were in Qatar he could only respond that he would sit and wait until the FBI calls him.

The lack of clarity and opaqueness are unfortunate features of the government’s handling of the No-Fly list; it characterizes almost every aspect of the program. The most threatening consequence of this is that travellers like Long who have experienced previous difficulty flying are effectively deterred from travelling and acting as free individuals. Indeed, the ACLU’s principal claim in Latif v. Holder spoke to the enigmatic nature of the governments redress procedures.

The agency tasked with maintaining the No-Fly list is the Terrorism Screening Center (TSC). Established in wake of 9/11 the TSC is a multiagency organization within the FBI; its stated mission is to identify suspected or potential terrorists and to maintain a database available to other law enforcement agencies.

Briefs filed by the plaintiffs shed light on the TSC’s policies as they pertain to redress procedures filed by travellers. To be sure the TSC does not accept redress inquiries from complainants even though it is the agency directly in charge of the No-Fly list. Rather, the TSC reviews complaints forwarded to it by the Department of Homeland Security’s Traveler Redress Inquiry Program (TRIP). Individuals who seek redress after having been denied a boarding pass complete a standard form and submit it online to TRIP. After the complaint is forwarded to TSC and a determination is made, it instructs DHS TRIP to notify the complainant. DHS TRIP responds to the individual but “neither confirms nor denies the existence of any terrorist watch list records relating to the individual.”[1] Furthermore, the DHS TRIP letter gives no indication to the complainant if they are clear to travel on commercial flights in the future.

The result is that unlucky travellers who seek redress through the established means are left completely in the dark with no suggestion from the Government of what they should do. In cases where people need to travel for work, medical care, and to be with their families, the confusion often turns to desperation. There are now a number of examples of stranded travellers who have adopted extraordinary means to return home. Here is an excerpt taken from the ACLU’s blog in which Raymond Earl Knaeble IV, a US Army veteran, describes his ordeal after he converted to Islam and travelled to Yemen to study Arabic:

In August, I began a new journey in which I flew to Panama, then traveled by bus through Costa Rica,    Nicaragua, Honduras, El Salvador, Guatemala, and all of Mexico to the U.S. border at Mexicali. During this journey I was subjected to three separate detentions by government officials who searched my belongings and subjected me to extended interrogations. In Guatemala, I was questioned and followed. On one occasion, I had to run after my bus, which had left while I was being questioned. When I finally reached the United States, the country of my birth and my home, U.S. officials handcuffed me. They detained me for 10 hours, put me through intense interrogation, and searched all of my belongings, including my laptop computer and other electronic equipment. They released me at 2:30 in the morning and finally allowed me to enter my country.

The case of Latif v. Holder highlights problems attending a policy that inherently resists attempts at oversight and challenges to its discretion. The result is the increased likelihood that civil liberties will be undermined. Without assurances that one will be able to return home after travel abroad, the great freedom to travel that many Americans have historically enjoyed are materially limited.

While it’s clear that maintaining vigilance over the nation’s entry points is an important security concern, what remains problematic is the lack of concern with travellers who are clearly not a threat. This coupled with a scheme that places the TSC effectively beyond oversight makes for a compelling case for reassessing how the government handles aviation security. Latif certainly made a step in the right direction but it still leaves stranded Americans many more paces away from home.

On February 19, Professor Lawrence Lessig presented a lecture titled” Aaron’s Laws: Law and Justice in a Digital Age” in honor of his appointment as Roy L. Furman Professor of Law and Leadership at Harvard Law School.

Those in attendance would agree that Professor Lessig’s presentation was thought provoking on many levels.  To my mind, his discussion of Aaron Swartz’s Guerilla Open Access Manifesto was particularly resonant.  The notion of a movement aimed at liberating information so that netizens could more freely engage with it flitted through my brain, triggering a thought I’d had while at a panel discussion hosted by the Dean the previous Friday: “Gun violence after the Newtown tragedy: What can legal, public health and other efforts do?”  Specifically, I remembered one question posed by a student identified as a joint-degree candidate at HBS and HKS.  She observed that the discussion over gun regulation oftentimes devolves into a partisan debate, divided along a line with Government on one side and Industry on the other (the latter wearing the hat of the NRA). But this dichotomy seems false and particularly overly reductionist with regard to Industry, which is much broader in scope than gun manufacturers and distributors.  In light of this, isn’t there something more that Industry can do?

The panelists gestured at Health Care, an industry well placed to address problems like gun owners who lack gun safety information and the mentally ill who lack access to continuing care.  The answer sat nicely with the discussion of public health initiatives; however, I propose that a more compelling response may be found within the purview of “other efforts,” particularly, efforts that can be made by Big Tech.

The online migration of social interaction through user-generated content sites (UGS) is almost complete (e.g. my mom has a Facebook).  Social norms are created and reinforced through the default settings of websites like Facebook and YouTube (for a more thorough discussion of this phenomenon, look at the recent conference sponsored by Harvard Law School’s new Program on Behavioral Economics and Public Policy, called “Social Media and Behavioral Economics”).  We “share,” we “like” and we “unfriend.”  In addition to socializing online, we also learn online.  We “Wikipedia” and we “Google.” Then, we share our “research,” and other people “comment,” “like” or “repost.”  At its best, the Internet is the School of Athens.  At its worst, the Internet is a cesspool of misinformation that rewards conclusory statements punctuated by an implicit eyebrow raise.  But whatever is the Internet, it is the place where the debate over sensible gun reform is happening – right now.  People are tweeting and posting (and retweeting and reposting) a hodgepodge of “truths,” collected from various “sources.” It is to those sources that I would like to turn your attention.

In the online fora, many “sources” cited in support of or against reforming gun laws are suspect.  They are tertiary at best and provide little to no critical analysis of issues raised.  Almost all of them are one-sided.  Posts of YouTube videos abound.  Very few references are made to academic scholarship, because although the Internet is an infinite archive, many resources are still off-limits to those unable to pay access fees (or those not affiliated with a university).  If the measurement of a resource’s worth is its price-tag, then one should not be shocked by the subpar quality of online discourse – excluded from it are many of the “best” sources out there!  Your typical netizen has to sift through weeds of freebie sources – some of which are fine, but many of which lack the benefit of having been written by individuals who are interested in informing rather than inflaming.  So, what can Big Tech do?

The answer, I think, is partially found in the spirit of Aaron Swartz’s Guerilla Open Access Manifesto.  Although Big Tech can’t unlock the coffers of knowledge (Big Publishing and Big Ed have to do that, see, e.g. the “Cost of Knowledge” campaign, which came into full force last year), Big Tech can help cultivate an environment that values critical thinking and scholarship.  Trying to “clean up” the internet could seem futile for many reasons, but I will focus on two: the first is a normative observation and the second an architectural observation. First, people (e.g. journalists) have long combatted the mislabeling of “opinion” as “fact,” and yet such practice is still epidemic in media – indeed, history is rife with the propagation of misinformation (gossip and rumor mills are credited with having started many a revolution).  Second, even if misinformation doesn’t inevitably prevail in the “marketplace of ideas,” the infrastructure of online fora, like the default word limits of twitter, facilitate the rapid spreading of conclusory assertions.  As I find a discussion of what is “human nature” far beyond the scope of this post (as should it be), I will turn to the second potential shortcoming of looking to Big Tech to help elevate online conversation, that is: its architecture.  Perhaps restructuring social UGS to provide a community policing system similar to Wikipedia’s (one that would permit flagging suspect assertions as biased or in need of a citation) would be a step in the right direction.  Currently, such sites provide for the removal of content that violates the sites terms or policies, so-called voluntary censoring, however, they target the substance, rather than the form of online discourse.

The debate surrounding differing opinions on gun laws is an important one and should be robust.  However, it should also be informed.  Citizens who purchase and possess firearms consider that there is a “right to keep and bear arms,” when it is in fact their right to “self-defense” that is protected by the Second Amendment.  This right is symmetrical and there are those for whom this same right is infringed by the possession of assault weapons by certain people and by the proliferation of firearms in certain high-density urban centers.  Indeed, the Constitutional fount for the right to possess a firearm is the same one that compels sensible gun law reform.  But such reform will only happen if citizens have access to reliable information that they process critically.

“Aaron’s Laws: Law and Justice in a Digital Age”

Feb. 19, 2013

Watch the lecture here: http://www.youtube.com/watch?v=9HAw1i4gOU4&feature=youtu.be.

PLEASE WATCH IT

Professor Larry Lessig, the most famous legal scholar of the internet gave his chair lecture today in Harvard Law’s Ames Courtroom, which was packed with students, professors, and community members.  Lessig was a close personal friend and mentor to Aaron Swartz, the brilliant young cyber-thinker who committed suicide last month in the midst of what most have considered the overly aggressive prosecution of him by the U.S. Attorney for the District of Massachusetts, Carmen Ortiz. The tragedy has sparked widespread calls for reform of the Computer Fraud and Abuse Act (CFAA), under which Swartz was being prosecuted, and limits on prosecutorial discretion in general.  Some on the left have expressed dismay that the suicide of a wealthy white academic has prompted such outrage when aggressive prosecution is a daily occurrence in minority communities.  Others have jumped into the fray, seeing a rare opportunity to push for reform.  For just one look into the response to his death the New York Times has a good article here: http://www.nytimes.com/2013/01/14/technology/aaron-swartz-a-data-crusader-and-now-a-cause.html?pagewanted=all

Lessig started out saying that he had planed to speak on corruption, but that Swartz’s suicide left him with no option but to change the topic to Aaron’s law, which he says is beyond his expertise and which he can address not as an academic, but only as a citizen.  Lessig had known him for 12 years, explaining that his experience mentoring Aaron was “his first experience being a father.”  Showing excerpts from the blog Swartz kept during his one year (or so) at Stanford, Lessig showed him as a sweet child, free thinker, and an idealist who touched and inspired many people when he founded about 10 non-profits devoted to free information and social justice.

“At the center of [Aaron’s] struggle is and was copyright.  In the debate between people who are pro and anti copyright, Aaron was on neither side.”  Rather, he opposed “dumb copyright.”  A perfect example was Swartz’s efforts to liberate data from PACER the database of public court records, which charged 8 cents a page.  He was not violating copyright, technical restraints, terms of service or any other prohibitions.  He had found a loophole.  “A loophole for public good” as opposed to the loopholes used for private gain by lobbyists and tax lawyers.  Swartz did the same thing with the government’s database of issued copyrights.  The PACER project got Aaron FBI surveillance; the copyright project, on the other hand, was met with approval by the Copyright Office.  Using all this as proof Lessig continued to emphasize that Aaron was a hacker.  He defines “hacker” as one who uses technical knowledge to make a better world.

According to Lessig, Aaron was his mentor, not the other way around.  The two worked together, upon Aaron’s insistence, on anti-corruption campaign for a while before they split again: while Aaron wanted to turn Barrack Obama into Elizabeth Warren, Lessig wanted Obama to pick up the fight with corruption he had promised in 2008.  Without that fight, the defenders of the status quo would defeat real change.

However, in the saga of the two crusaders, the COICA (Combat Online Infringements and Counterfeits Act) drew them back into fights about copyright, a la Al Pacino and George Costanza.  And Aaron’s Demand Progress, with massive help from Wikipedia, Craigslist, Reddit and more killed SOPA and PIPA.  What Aaron saw in that win was not just a victory for copyright law, but a victory for grassroots political activism against the money of Hollywood.

Then the talk moved to arrest and prosecution.

Aaron had “broken into a restricted computer wiring closet,” by turning the door knob; “accessed MIT’s [famously open] server without authorization;” he accessed “JSTOR’s archive of digitized digital articles,” which as a fellow at Harvard he had the right to do; he concealed his identity, by covering his face with a bike helmet; he “downloaded a large portion of JSTOR’s archive.”  The story behind his motivation is available here: http://www.newrepublic.com/article/112418/aaron-swartz-suicide-why-he-broke-jstor-and-mit# Aaron was, in short, horrified by the restriction of free academic articles to the “knowledge elite” at US universities and started Guerrilla Open Access Manifesto.  He started a campaign urging people to obtain electronic copies of articles and publish them online.  He would publish online anything sent to him and advocated “some shell-scripting and breaking a couple rules” to free information.  It was, to him, civil disobedience.  In order to protect Lessig, who though he agreed with the goal, but disagreed with his tactic of civil disobedience (or at least had misgivings about it), Aaron set is MIT project at MIT rather than at Harvard.

Aaron was charged with 13 felonies, which could carry up to 35 years in jail.  What he did was not obviously not a crime.  But it was not obviously a crime either.  Now, the law.

Was this about copyright?  It triggered copyright.  But neither the indictment nor the superseding indictment mentioned copyright infringement.  This is because JSTOR would not cooperate with a copyright prosecution.

So we’re left with the CFAA.  The key point of contention in the CFAA, in this case, is “exceeds authorized access.” Does that phrase apply to hackers, or to people who misuse information to which they have access to.  With the first, you break technical, coded restrictions to get to information.  For the later, you’re breaching contract, the terms of service, to get to the information.  These are felonies.  Can it really be that under the CFAA a breach of contract is a felony violation of the criminal laws of the United States of America?  Judge Kozinski says no: http://cdn.ca9.uscourts.gov/datastore/opinions/2012/04/10/10-10038.pdf   According to Kozinski, violating code, hacking around technical restraints is a felony but violating terms of service, breaching a contract, is not.  But in either case, you’re simply disobeying some words.  Why should the coders’ words be taken more seriously than the lawyers’?  In reality there were several computer tricks back and forth between Aaron and JSTOR, changing and blocking IP and Mac addresses.  In the end, among other things, MIT had all of its access to JSTOR blocked briefly.  And its not clear how his access would have been unauthorized or exceeding authorization.

However, regardless of whether or not Aaron’s access was unauthorized, and harm he caused was very ambiguous.   Sharing the articles on file-sharing networks would not have caused any financial harm for JSTOR.  Which is why they settled.  While Ortiz said that “stealing is stealing whether you use a computer command or a crowbar.”  That’s not true.  Crowbars always cause harm.  Computer code does not.  Lessig says that we need prosecutors who can tell the difference between crowbar like hacking and hacking that does not cause harm, or may not cause harm.  The government “assure[d]” Kozinski that it would not use the CFAA to violate minor violators.  We need prosecutors who stick to that promise.

Lessig’s key point, regarding the “crime” itself is: Whether or not we agree with Aaron, whether or not we thing what he did was right or wrong, we know that what the prosecutor did was wrong.  The prosecutor was wrong to bully Aaron, to play example justice with him, to try to teach him a lesson.

Aaron’s law is great.  But it’s incomplete.  He cannot be boiled down to a hacker, an internet activist or even a political activist.  Rather he was a citizen who acted on a view of what he thought was right.  According to Lessig, we need to make Aaron’s ideas laws.  Aaron’s Laws not Aaron’s Law.

First: Aaron’s Law is great.

Second: we must destroy dumb copy right.  Including overturning the Sonny Bono Copyright Term Extension Act and defeating the Research Works Act, which would forbid the US Government from supporting open access research.

Third: End corruption; end money in politics; give the power back to the people.

Fourth: “Fix the obliviousness that we live our daily life with.”   We have an obligation as citizens to pull back the government when it overreaches.

As Kozinski, the Romanian immigrant said in Nosal, “we should not have to live at the mercy of our local prosecutor.”   While the U.S. is not the U.S.S.R., we must ask whether or not it’s still America.  We must fight for the right to think differently in America.

In the question and answer session, Lessig says that when JSTOR dropped out of the case he thought the case would be over.  While MIT, against everything that everyone expected of him, pressed the case, it is now taking it very seriously.  They have appointed Hal Abelson (http://www.csail.mit.edu/user/1535) to run an internal investigation, who Lessig says is the best man for the job and who he has complete trust in to come to the right answers.

In response to a question about prosecutorial discretion Lessig said that while he will defer to experts on the subject, like Charles Ogletree, on the topic in general.  But he said that we can look at computer laws separately because in the realm of computers to be practice civil disobedience in cyberspace is to step off a cliff: rather than a slap on the wrist, that

The law and lawyers have an enormous potential to do good.  However, it takes a sort of courage that is too often driven out of us.  We must tell stories about, and encourage, and protect those lawyers who do good.  We must decide who we are going to be.  While must we pick our fights, for if we do too much right we might retire too early, we must pick some fights.

As I said, please watch the video.  It is inspiring, moving, emotion and brilliant.

I don’t intend to do a complete analysis of the white paper here. This post only concerns the curious invocation of American bombing of Cambodia in the 1970s as precedent for drone strikes in the absence of declared conflict. Pause for a moment to appreciate this, and to appreciate both the domestic and international repercussions of this intervention.

President Nixon announced the campaign in Cambodia, on April 30, 1970, describing it as a necessary element of the Vietnam War; the idea was that if troops from North Vietnam were hiding in parts of Cambodia, and if the Cambodian government was unable to do anything to stop it, the United States would. Needless to say, the expansion of the war into a non-belligerent country was controversial. The day after Nixon’s announcement—Friday, May 1—a rally was held at Kent State University in Ohio. It was scheduled to continue the following Monday, May 4, despite the presence of the National Guard, which had been called in over the weekend to disperse the crowd. The events of that day were memorialized by Neil Young: “Four dead in Ohio.”

Perhaps we can just blame that tragedy on the clash between the Guardsmen and the students, without calling into question the wisdom or legality of the policy itself. It is worth reflecting, then, on what the campaign meant for Cambodia itself. Most directly, the bombs that were dropped on Cambodia from 1969-1973 (a larger number than were dropped on Japan in World War II) contribute to the persistence of unexploded ordnance there. The effects of the bombing on the support for the Khmer Rouge insurgency is harder to assess, but the tragic consequences of the Khmer Rouge’s victory in 1975 suggest that any such intervention is inherently destabilizing. Regardless of whether there is legal culpability for the subsequent events in Cambodia, there is surely something morally questionable.

It isn’t even clear that the legal arguments are so clear-cut. While the white paper approvingly cites State Department Legal Adviser John Stevenson’s 1970 address on the bombing of Cambodia, a contemporaneous New York Times article described that Abram Chayes (my work in Cambodia last summer at the ECCC was funded by a fellowship in his name) “promptly rebutted” him. The same Times article quoted some language from Stevenson’s address, the Kafkaesque sentiment of which somehow failed to make it into the current DOJ white paper: “the United States had chosen to invade without Cambodian consent to preserve the neutrality of that country.”

Does the Department of Justice believe that the glorious history of American bombing in Cambodia supports the proposition that intervention in a neutral country is justified by that country’s inability to resolve the situation on its own? The example that they use is so awful that it is impossible to believe that anyone could say this in good faith. Which is probably why, in true legalistic fashion, the white paper doesn’t expressly say this. Note the use of double negatives in the white paper – they find no authority that says that they can’t intervene in this way. Experience, evidently, does not count. Instead, the Cambodian bombing has been stripped of its complicating nuances and controversies and has been transmuted into “the rule of historical practice.”

We know that Obama has largely continued the drone policies of the Bush administration. Even so, the approving nod to Nixon’s expansion of the Vietnam War across Southeast Asia is an unexpected development. I’m reminded of statements made by a Vietnam veteran in 1971: “We veterans can only look with amazement on the fact that this country has been unable to see there is absolutely no difference between ground troops and a helicopter, and yet people have accepted a differentiation fed them by the administration. No ground troops are in Laos, so it is all right to kill Laotians by remote control. But believe me the helicopter crews fill the same body bags and they wreak the same kind of damage on the Vietnamese and Laotian countryside as anybody else, and the President is talking about allowing that to go on for many years to come.” That veteran is now serving as our Secretary of State. I’m curious what he thinks about the use of the Cambodian bombing campaign as precedent for our current situation.

Law schools have long recognized that the first year is the most effective moment in legal education, but by and they large have declined to use that opportunity to spur a legal conscience. The first year of law school builds skills, to be sure, teaching the student to “think like a lawyer” in the most traditional sense. But as the student quickly learns, often through a dismissive scoff in response to “justice” offered as a reason for a rule, lawyers don’t think in abstract right and wrong. Justice must not enter naked: only clothed in a precedent, a statute, in economics or another authority may it make an appearance. “Only when you’ve exhausted all else should you turn to what’s right” is the first-year professor’s mantra. There must be something more for aspiring keepers of freedom’s shield. To me, that something more should be a mandatory 1L course on legal morals.

The two standard answers to such a course are a) it’ll degenerate into an explanation of how close you can toe the line without sanction, or b) it’ll turn into a broad, philosophical, “what is justice?” class that doesn’t belong among its demanding Socratic brethren. But the most difficult questions I’ve encountered in law school have not asked for the reasoning behind a rule or vague policy rationales, but instead asked why a rule should be so. The student answered, and the professor followed with the contrary; the student tried another answer and received another challenge. The professor did not seek abstract logic, quotation from precedent, or even the student’s mere “opinion” about rule; the professor sought a consistent set of values that is as much the lawyer’s toolkit as precedent and statute, at least for any lawyer who cares about shaping her world rather than letting it pass her by. That is what every student needs in the first year, when she is just beginning to comprehend the law and its worth.

To those who say you can’t create consciences in the classroom, I say no one is asking for such a feat. Very few people live entirely without a moral compass. Most people find it convenient to put it aside and everyone ignores it at least some of the time, but it is not often lost for good. The point of thinking about how one’s values interact with the legal world is not to cure the sociopaths but to have the student find out what she cares about, what puts a fire in her eye as she looks on an imperfect world. It will be a challenge to create a course on legal morals that is rigorous enough to stand beside Torts, Contracts and the rest of the old guard, but if it can attach deeper thought to questions of law in a lasting way, it’ll be well worth it.

For the American Association of Law Schools to say it teaches students to think like lawyers is to say nothing. Lawyers think like law school teaches them to think. The idea that the way lawyers think is an external truth to which law schools must conform is a dangerous fiction. Law schools must accept their profoundly important role in molding legal minds, and take seriously their duty to keep watchers on the walls.

The Justice Department announced Wednesday that it had settled a lawsuit against Sussex County, Delaware and the Planning and Zoning Commission of Sussex County for violations of the Fair Housing Act.  The lawsuit alleges that Sussex County engaged in race and national origin discrimination when its planning and zoning commission denied land use approval for an affordable housing subdivision to be built, in part based on the supposition that African-American and Latino residents primarily would reside there.

The settlement requires the defendant to “take affirmative steps to provide for future affordable housing, communicate its commitment to fair housing, and establish mechanisms to ensure affordable and fair housing in Sussex County.”  Regarding the instant application, the defendant is required to reconsider the development using nondiscriminatory criteria and to pay the developer, Diamond State Community Land Trust, $750,000 in damages.  Also, the county must appoint a fair housing compliance officer to ensure the county conforms to the requirements of the settlement and to the provisions of the Fair Housing Act.

A report to the U.S. Department of Housing and Urban Development (HUD) regarding Sussex County’s treatment of Diamond State Community Land Trust’s application is what led to the lawsuit.  HUD and Sussex County entered into a voluntary compliance agreement Wednesday, which resolves an enforcement action taken by HUD surrounding the same application.  The Voluntary Compliance Agreement binds Sussex County to several steps, including developing a fair housing plan and evaluating ways to develop infrastructure in existing minority and low-income communities.

Thursday, the Justice Department reached a settlement with the manager and owner of the Geneva Terrace Apartments Inc. located in La Crosse, Wisconsin.  The complaint, filed October 26, 2011, alleged that the apartment manager told African-American applicants that units in the complex were unavailable when they were, and gave preference to white rental applicants.  When an African-American couple inquired about a vacancy, the apartment manager told them there were no available apartments, despite a sign at the complex advertising vacancies.  The couple asked a white friend to contact the apartment complex.  The friend was told that the complex had vacancies.  The couple then reported the complex to the Metropolitan Milwaukee Fair Housing Council (MMFHC) who, after completing their own investigation and finding other African-American prospective renters similarly treated, filed a complaint with HUD.

The defendants have agreed to pay $57,000 in the settlement, $47,000 of which will be paid to the complainants in damages.  The remaining $10,000 of the settlement is a civil penalty paid to the United States.  Geneva Terrace Apartments LLC also was ordered maintain nondiscriminatory housing practices to will comply with the provisions of the Fair Housing Act.

Thomas E. Perez, Assistant Attorney General for Civil Rights, has pledged that the Department of Justice will “continue to vigorously enforce the [Fair Housing Act] to ensure access to housing regardless of the race of an applicant.”  Housing discrimination remains prevalent in the United States, and the Justice Department’s continued efforts to curb it should be commended, and continued.