Author: Margot

The video of my talk about drones is available:

 

I will be serving on Columbus, OH’s Police Body Camera Committee.

Over at the Dispatch:

Mayor Michael B. Coleman has announced a nine-member committee to help the city deploy body cameras for 1,800 Columbus police officers by the end of next year.

The committee is to make formal recommendations on how, when and where officers will use the cameras.

The committee also will recommend what images captured by the cameras will be public records.

Some quick thoughts on how challenging this will be, at Northwest News:

Kaminski, a specialist in public accountability and privacy rights, said body cameras present “a serious policy challenge.”

“It will take hard work to balance the public’s right to know with the important privacy interests at stake,” she said

 

I respond to Alex Tsesis‘s Free Speech Constitutionalism over at U. Illinois Law Review:

The First Amendment has a public relations problem. It has been used to defend Nazis and cross-burners, derail campaign finance reform, protect tobacco advertisers, and defeat health privacy.¹ It is no big surprise that a number of scholars have called for rolling back the Supreme Court’s First Amendment absolutism. ² Alexander Tsesis’s Free Speech Constitutionalism provides a theoretical framework for reconsidering the First Amendment. The estimable aim of the article is to provide a guiding theory for bringing more balancing into First Amendment doctrine…

He calls for balancing of the individual right with an interest in the general welfare. The problem is that it can be extraordinarily difficult to determine just what the general welfare is—especially in a pluralistic society where one person’s religious speech is another person’s fighting words…

Nonetheless, something strange is going on. The increased visibility of multiple actions as “speech” under the First Amendment, combined with increased First Amendment formalism, has been expanding the scope of First Amendment coverage. This expansion will inevitably force reevaluation of underlying values. These questions are already arising in the context of discussions of “revenge porn,” of data privacy laws, and of the EU “right to be forgotten.” If we consistently and wholesale prioritize individual information collection and dissemination over general social harms, we may end up in a society incapable of producing truly free speech to begin with.⁴⁴
The question is, then, at what point concern over historical consistency gets obviated by a clearly new set of factors to balance. Another way of putting it might be: at what point does adherence to formalism run counter to valuable underlying principles? Tsesis is admirable in his energetic attempt to answer this question by identifying underlying principles to guide us at this stage. But the mess of First Amendment theory is also part of its beauty. First Amendment cases are so often the vehicle for truly hard lessons about the rule of law. They can present a choice between heartstrings and high principles. A theory that eliminates this dizzying tension risks destroying a valuable vehicle for teaching citizens constitutional principles.

 

I review/discuss Woody Hartzog’s Unfair and Deceptive Robots over on JOTWELL:

“When the law faces a new technology, a basic question is who governs it, under what mandates, and with what rules? Technological development disrupts regulatory schemes…”

More on scary consumer robots here.

 

In which I discuss law and policy in the imagined future in which “invisibility cloaks” are possible with Meanwhile in the Future over at Gizmodo. Turns out they raise a lot of the same issues as masking and anonymous speech.

Yesterday, with the help of great local counsel, we filed a law professor’s amicus brief in Wikimedia v. NSA.

Brief of Amici Curiae First Amendment Legal Scholars

The ACLU is challenging the NSA’s “Upstream surveillance,” which involves copying Internet traffic (including emails, chats, and web browsing) as it crosses the fiber optic backbone of the Internet.

I filed the brief, with local counsel, (or really, attempted to file based on the court’s discretion) on behalf of First Amendment Legal Scholars, to emphasize the importance of First Amendment privacy challenges for our self-governing democracy. The brief explains that surveillance can give rise to a number of First Amendment injuries that confer standing on plaintiffs, even after Clapper v. Amnesty International. We counsel the court to avoid potential conflicts with, and unintended consequences for, First Amendment law.

Signatories include: Marc Blitz, A. Michael Froomkin, David Goldberger, James Grimmelmann, Lyrissa Lidsky, Toni Massaro, Neil Richards, and Katherine Strandburg.

The Media Freedom and Information Access Clinic that I co-founded while a student at Yale is beautifully profiled in the latest Yale Law Report.

The wonderful David Schulz, newly appointed clinical lecturer in law and co-director explains:

“It’s quite clear that new technologies and the way the government is using them have fundamentally altered the relationship between the government and the people who are governed.”

My comment on the founding of the clinic:

“We each had slightly different ideas of what gaps the Clinic could fill and what services it would provide. Two of us had experience in national security litigation, two were coming from summer work on digital civil liberties, and two were inspired by the increasing dearth of impact litigation by legacy news organizations. It’s extraordinary to see how the Clinic today does valuable work affecting issues in all of these areas and continues to trust and empower its student leadership.”

The Clinic currently represents Nick Merrill in a challenge to his gag order, and has litigated for transparency at the Foreign Intelligence Surveillance Court (FISC). I couldn’t be prouder.

On September 25th, I’ll be speaking about drone policy at Purdue’s “Dawn or Doom” conference.

Purdue faculty experts and leading national authorities will present their perspectives on the current technology explosion, explore conditions that will foster innovation and investment into the next generation of technology, and address the big-picture issues where both excitement and alarm are appropriate responses.

I’ll be moderating a panel on The Regulation of UAVs: Air Safety, Privacy and New Technologies at New America’s conference on Drones and Aerial Observation, Weds. July 22, 2015.

[D]rones, by virtue of their aerial perspective, are able to gather large amounts of information cheaply and efficiently, as can unpowered aerial platforms like kites and balloons.

That information, in the form of images, maps, and other environmental data, can be used by communities to improve the quality and character of their property rights. These same tools are also useful in other, related aspects of global development…