This case was reargued by Roy Englert and Pam Karlan, before Justice Sotomayor, who enjoyed her time in the center seat, adding “This is the first time I’ve sat here. It feels pretty good.”

NPR has a great writeup.

Karlan had some great zingers:

Sotomayor asked why the Court should “break with tradition,” thus depriving the owners of their “reliance” on previous decisions.

Karlan shot back that if the Court were to side with the owners for a third time, it would amount to something done in baseball only once before—three errors on a single play.

Sotomayor, with a straight face, opined that the Court could apply another baseball rule: three strikes and you’re out.

Karlan, undaunted, replied, “I’m swinging for the fences here, your honor.”

As did Roy:

Englert replied that “these young men are making on average $28,000…as much as Supreme Court justices.” Moreover, unlike other sports, he observed, baseball puts enormous investment into training players in the minor leagues.

Sotomayor, however, had a deeper question. What do we do “to the integrity of the court” when we let a “clearly erroneous decision stand?” And how long should we let it stand?

Do we let it stand, asked the judicial Yankee fan, “as long as it takes the Red Sox to win a World Series?”

I should note that this event began after I blogged in July 2011 that we should re-enact Flood v. Kuhn. Afterwards, Roy followed up with the Society, and made it happen. Kudos to everyone involved.

Update: Roy writes in with an update about his oral argument:

Probably my only point with any real traction was that the young staffer primarily responsible for the 1952 House Report on “Organized Baseball,” a man named John Paul Stevens whom President Nixon had more recently (in 1970) named a 7^th Circuit judge, was less famous in Washington than Emanuel Celler, whose name is usually associated with the Report, but we might be hearing more about that young staffer in the future. The Celler (or Stevens) Report is quoted in the actual Blackmun opinion for the Court in Flood v. Kuhn.

You can read more about the JPS report in this Atlantic article, or in Stuart Banner’s The Baseball Trust.

He wasn’t first. He was second, but not by much.

As I discuss in Unprecedented, the Attorney General of Florida was able to electronically file about eleven minutes before Virginia.

Florida, representing twelve other states, was the first to file. Initially, the Sunshine State had trouble uploading the complaint to PACER, the federal courts’ notoriously unreliable electronic filing system. Florida attorney general Bill McCollum had to wait “seven agonizing minutes” before the documents were properly filed. But they were first—and beat Virginia by eleven minutes.

However, Virginia was the first case to reach a judgment, receiving a favorable Motion-to-Dismiss and Summary Judgment ruling before Florida.

As we get closer to the race, I will talk more about Cuccinelli’s “stubborn refusal” to listen to anyone in Washington who tried to explain to him why his decision not to include private plaintiffs in his suit would likely doom the case to a dismissal for lack of standings. Stopping for any reason–even if to file an amended complaint was not an option. There was a legitimate race to the Supreme Court. I previously joked that from the outset, Ken was thinking about running for Governor with his behavior during this case. This campaign video doesn’t dispel me of that disbelief.

“Ma’am, let me finish. Let me finish ma’am,” said Obama. “This is part of free speech is you being able to speak but also you listening. And me being able to speak. All right?”

Certainly, a heckler can be removed from a crowd if she is disrupting the order of the President’s speech, but does free speech require someone to “listen?”

Update: Looks like it was protestor extraordinary, Code Pink’s Medea Benjamin who interrupted POTUS.

On Wednesday, Chief Judge Garland wrote back and said, yeah, we can do that, and make it available the same day!

Kudos to Olson, and Howard Bashman, who have brought attention to this important change.

Who said the D.C. Circuit is understaffed? You ask, and you shall receive.

Today, the D.C. Circuit. Tomorrow, SCOTUS?

First, it’s clear that technology alone is no panacea for the world’s ills, yet smart uses of technology can make a world of difference. In the future, computers and humans will increasingly split duties according to what each does well. We will use human intelligence for judgment, intuition, nuance and uniquely human interactions; we will use computing power for infinite memory, infinitely fast processing and actions limited by human biology. We’ll use computers to run predictive correlations from huge volumes of data to track and catch terrorists, but how they are interrogated and handled thereafter will remain the purview of humans and their laws. Robots in combat will prevent deaths through greater precision and situational awareness, but human judgment will determine the context in which they are used and what actions they can take.

As technology advances, the role of human judgment becomes more important, mechanical (no pun intended) tasks, that can be delegated, will be valued less. What this means for the workforce, our economy, and our culture, is a question I have been giving much thought of lately. More on that later this summer.

Sen. Dianne Feinstein cited Graham’s comments, then, saying, “I think this sounds like the fairest approach, but here’s the problem … we know this is going to blow the agreement apart. I don’t want to blow this bill apart.”

She cited the fact that the Supreme Court could strike down the Defense of Marriage Act provision that prevents same-sex couples from having equal immigration rights. She also noted the a bill to repeal DOMA is holding in the Senate, concluding, “I would just implore to hold up on this amendment at this time.”

Alas I don’t have a transcript, but assuming these remarks are accurate, what exactly would the Supreme Court’s decision have to do with this case? Well, I gather that the Congress really, really hopes the Court strikes down DOMA so they don’t have to. And if the Court strikes down DOMA, would it be unconstitutional for an immigration statue to provide certain rights for opposite-sex couples, but not same-sex couples? Would such a law have a rational basis?

This seems to be an interesting spot where Congress is willing to pass the buck to the Court to make the tough decision–the very decision that the Court would almost certainly have the Congress do.

I’m sure this will find its way into Justice Scalia’s DOMA dissent somewhere. Or something like that.

New York City has apparently taken note. In NYC, it is illegal to rent your own apartment for less than 29 days. Instead, you must register as a hotel and comply with all the various hotel and occupancy laws.

In New York it’s illegal to rent an apartment for less than 29 days, Crain’s New York Business reports, but as of May 2013 about 30,000 New Yorkers were signed up as hosts on the service.

Nigel Warren, the defendant in the New York case, was charged with violating the city’s hotel law, as well as building code violations. The administrative law judge presiding over the case dismissed the building code violations, while upholding the hotel law charge. Warren was fined $2,400 for breaking the law.

Warren, who reportedly has rented his apartment for short-term stays three times with Airbnb, told CNET he doesn’t know if he’ll appeal the ruling.

In this case there were no findings that the housing violated any health or safety rules (building code violations were dismissed). Rather, renting out the room violated what is nothing more than a protectionist law aimed at insulating overpriced hotels from competition.

 The indoor tanning tax actually hasn’t slowed down the indoor tanning business, according to a report in this month’s Archives of Dermatology finds. Northwestern University researchers surveyed 308 indoor tanning salons in Illinois and found that patrons certainly don’t appreciate the new fee: 79 percent, just like Snooki, oppose it. But the extra cost wasn’t enough to stop them from hitting the tanning bed. In the same survey, 78 percent of salon patrons also said they didn’t care about the new excise tax.

Though Snooki may have shrugged, others were not so strong.

And for what its worth, I fought tooth and nail to keep in a Jersey Shore section about the Snooki tax in Unprecedented.

Indeed, the unpopularity of the taxes imposed by the Affordable Care Act permeated all corners of society—even the beaches of

Seaside Heights, New Jersey. On the season premiere of the hit reality show Jersey Shore, the Garden State’s pint-sized provocateur Nicole “Snooki” Polizzi opined on Obamacare: “I don’t go tanning anymore because Obama put a 10 percent tax on tanning.” Indeed, what would become known as Obamacare’s “Snooki tax” placed a 10 percent ex- cise tax on all UV-tanning salons. Snooki knew why that tax was in there. “He did that because of us,” referring to the cast of Jersey Shore, who were known to take tanning very seriously. Snooki continued, showering praise on Obama’s 2008 Republican opponent: “McCain would never put a 10 percent tax on tanning. Because he’s pale and he’d probably want to be tan.” This remark would have been an in- significant event—but McCain responded! Senator McCain tweeted Snooki, making an excellent pun on her housemate, Michael “The Situation” Sorrentino: “I would never tax your tanning bed! Pres Obama’s tax/spend policy is quite The Situation. but I do rec wearing sunscreen!” Then the president got into the fray. At a White House Correspondents’ Dinner, the president graciously excluded members of the cast of Jersey Shore and a special guest from the Snooki tax: “The following individuals shall be excluded from the indoor tan- ning tax within this bill: Snooki, JWOWW, The Situation, and House Minority Leader John Boehner.”

Like Texas as a whole, Houston sells itself as “business friendly,” and Ms. Parker ticks off the attractions—ease of permitting, unobtrusive regulations and low taxes. She also supports Houston’s limited restrictions on land use, which some here call its real secret sauce. Without zoning, Houston can adjust to shifting market demands—whether for townhouse complexes or retail outfits—faster than most any other city. It looks unwieldy to anyone of the urban-planning persuasion, but it also keeps prices down.

Tory Gattis, who writes the Houston Strategies blog, says: “I’d argue we may be the most libertarian city in America. Live and let live; strong property rights; not much corruption; small business culture.”

While it is true that Houston lacks a formal zoning code, the city has implemented a number of land-use measures–including minimum lot sizes, mandatory parking allocations, street sizes, etc–that serve as a de facto zoning code. However, the entirety of Houston’s land use regime can be taught in a single property class (such as this one).

The same cannot be said for New York, or any other comparably-sized city.

But does this make Houston the most libertarian city in America? Mercatus ranked Texas as the 14th most free state in the country, but is number one for labor market freedom:

Texas is first in the country in terms of labor market freedom. It is a right-to-work state and remains the only state not to require employers to contribute to workers’ compensation coverage. Indeed, it has excellent workers’ compensation laws overall. While Texas has only light community rating and no individual rate review, it has imposed mandated coverages on health insurance that add significantly to the cost of insurance premiums (it is two standard deviations above the mean on them). Texas led on telecom and cable deregulation. It has also passed eminent domain reform and performs well on land-use regulation. The state’s liability system is below average, however.

Where it suffers though is with respect to personal freedom, where it doesn’t crack the top ten.

The president and chief executive officer of The Associated Press on Sunday called the government’s secret seizure of two months of reporters’ phone records “unconstitutional” and said the news cooperative had not ruled out legal action against the Justice Department.

Gary Pruitt, in his first television interviews since it was revealed the Justice Department subpoenaed phone records of AP reporters and editors, said the move already has had a chilling effect on journalism. Pruitt said the seizure has made sources less willing to talk to AP journalists and, in the long term, could limit Americans’ information from all news outlets.

Pruitt told CBS’ ”Face the Nation” that the government has no business monitoring the AP’s newsgathering activities.

“And if they restrict that apparatus … the people of the United States will only know what the government wants them to know and that’s not what the framers of the Constitution had in mind when they wrote the First Amendment,” he said.

You know it’s serious when they start invoking the Framers of the First Amendment (not the Constitution, as the Bill of Rights came a few years later).

Obama has been willing to push the bounds of executive power when it comes to making life-and-death decisions about drone strikes on suspected terrorists or instituting new greenhouse gas emission standards for cars.

But at other times he has been skittish. When immigration activists first urged him to halt deportations of many illegal immigrants, for instance, Obama said he didn’t have the authority to do so. He eventually gave in after months of public protest and private pressure from immigrant and Hispanic advocates, granting relief to certain people who had been brought to the United States as children.

And at key moments, Obama has opted against power plays. In the 2011 debt-ceiling fight, Obama ruled out unilaterally raising the country’s borrowing limit even though some constitutional scholars, as well as many of his political allies, believed doing so was well within his authority.

Larry Tribe–who in the past has come to the President’s rescue on a number of criticisms–even notes this inconsistent application of executive power:

Still, the advisers acknowledge, Obama’s sometimes-yes, sometimes-no approach can give the appearance that he’s all over the map. Four-and-a-half years in, they said, he still is figuring out how to strike the right balance.

“He is deeply concerned both that his office . . . never violate its primary duty to abide by the Constitution’s checks and balances and that he nonetheless exercise those powers to the limit as needed to protect the nation and its people,” said Laurence Tribe, a Harvard Law professor who has been a mentor of Obama’s for two decades and served briefly in Obama’s Justice Department.

Still, Tribe expressed concern that Obama, himself a former law instructor, “is being a bit too much the constitutional lawyer in some of these matters and not enough the ordinary citizen, sharing the anger that ordinary citizens understandably feel but flexing the muscles that no citizen other than Barack Obama possesses.”

LOL. Acting like a constitutional lawyer is an insult.

And this constitutional lawyer refused to rely on his powers under the 14th Amendment during the debt ceiling crisis (no trillion dollar platinum coins!)

Many Democrats believed Obama should have used his executive authority to lift the debt ceiling — a move advocates argued was legal under the 14th Amendment. Former president Bill Clinton said at the time he would have invoked that authority and “force the courts to stop me.”

Even the threat of invoking the 14th Amendment would have neutralized the GOP’s leverage, many felt. And yet Obama, believing such a move to be unconstitutional, ruled out the idea. White House aides said it was not only illegal, but also impractical for the president to take such a drastic step.

William Howell, a University of Chicago political scientist, cites the episode as a low point for Obama in a new book titled, “Thinking About the Presidency: The Primacy of Power.”

“He may have been right on his concerns about constitutionality, but it was costly,” Howell said. “There was a sense of executive impotence in a heightened moment of crisis.”

Of course, he pushed forward with the ACA, despite constitutional concerns–though at the time, those concerns were far flung off the wall. As I discuss in Unprecedented, it was the President’s determination to complete his “legacy” that motivated him to pass the ACA at all costs, with the full weight of the White House behind it.

According to a report from Politico (I haven’t seen the transcripts), Judge Motz had a very distinct view of the commerce clause following NFIB.

Klein argued that Congress has a long history of regulating employer health plans under the Commerce Clause — and that the employer mandate is no different.

But Motz suggested that last year’s health law ruling in the case brought by 26 states and the National Federation of Independent Business — in which the Supreme Court said the individual mandate is not valid under the Commerce Clause but valid under the taxing power — put new restrictions on the Commerce Clause.

“The Supreme Court opinion puts a new light, it seems to me, on the Commerce Clause,” Motz said. “It sounds like we’re in a new regime [post] NFIB.”

I think Judge Motz’s characterization of our “new regime” after NFIB is accurate. Her comment is a different way of describing what Larry Solum has referred to as our shifted “constitutional gestalt.” The gestalt is the notion that although NFIB did not repudiate the New Deal settlement, going forward, the scope of the federal government’s authority will be open to constitutional contestation.

I discuss this theme in my book, Unprecedented, and added this great quotation from Judge Motz:

Perhaps more importantly, beyond constitutional doctrine, NFIB v. Sebelius altered our collective consciousness about the relationship between the federal government and individual liberty. By shifting what Prof. Larry Solum has referred to as the “constitutional gestalt,” NFIB has forced us to rethink our assumptions about what we thought was settled law.  In May 2013 during oral arguments over a followup case about the Affordable Care Act, Judge Diana Gribbon Motz observed that NFIB “puts a new light, it seems to me, on the Commerce Clause.” The Fourth Circuit judge, who two years earlier had dismissed a challenge to the ACA under the Anti-Injunction Act without addressing the commerce clause analysis, added, “it sounds like we’re in a new regime [post] NFIB.” Judge Motz is correct. NFIB has forced us to rethink our assumptions about what we thought was settled law.

H/T Randy Barnett

Dealbook reports:

Long thought of as a company that serves the needs of Wall Street firms,Bloomberg L.P. is quietly becoming more like them, moving recently into businesses that have been the domain of the largest banks.

This relatively unheralded expansion by Bloomberg helps explain Wall Street’s consternation at recent disclosures that some customer data was freely available to reporters and others inside the company. The fear inside banks is that Bloomberg could use that data not only to write negative news articles but also to compete directly.

In recent years, Bloomberg has offered new ways to trade stocks, bonds and more complicated financial products, potentially taking revenue from subscribers to the ubiquitous Bloomberg desktop terminals, which contain a vast store of market data. The expansion is even leading Bloomberg to offer traditional Wall Street services like wealth management and research.

“If you add all this stuff up together, they do look increasingly like a brokerage business,” said Larry Tabb, founder of the consulting firm Tabb Group.

He said that Bloomberg was not yet a dominant force in these activities and had been careful to placate the concerns of subscribers. But, he said, “it makes some of these brokers think, are these guys friend or foe?”

Having access to data allows companies to compete in novel ways. Perhaps one example is Google. Google started off as a simple search engine that indexed other people data. But by aggregating and collecting all of the world’s information, and recording and tracking search behavior, which improves algorithm, now Google can compete in a host of different industries that were unforeseeable a decade ago. Now, when you do a search for something, a Google service is likely to come up at top.

There may be similar moves afoot in legal-data service companies that may begin selling legal services.

Recently I was chatting with the President of a legal tech startup. The tool provides innovative ways of allowing attorneys to conduct legal research based on legal rules. That is, instead of simply searching for keywords, and hoping a precedent pops up that is relevant, the tool can service answers based on searches for specific rules of law. The tool is amazing.

But, offering that service raises a host of questions. The algorithm will be refined based on searches by lawyers. It is not hard to see how tracking the types fo search and research a lawyer, from a specific firm, can reveal a lot of inside information about how a firm may be litigating a case. I’m sure WestLaw and Lexis have had access to this information for a very long time. But, what happens when the software becomes more sophisticated, and becomes more indicative of litigation strategy, rather than just research trails. This is very, very valuable information. Now, it could be used in an innocuous way–this firm is litigating a case in a certain manner that persuaded a judge, so lets train our algorithms to suggest that other lawyers litigate a case a similar way. Or, it could be used in a nefarious way–let’s obtain access to how opposing counsel is litigating a case during trial, whether by authorized, or unauthorized access.

Traditionally, the rules of professional conduct would inhibit such conflicts of interest, or even general breaches of fiduciary duty may limit this. But the very manner in which algorithms are improved is by analyzing previous usage. And when the data can be aggregated or attributed to a specific law firm–say for example a program can analyze how a particular attorney prosecutes a specific case–it gets tricky.

Bloomberg seems to be addressing this separation:

Bloomberg says its trading operations are walled off from its data operations and asserts that it has won the trust of clients over the years. The company is eager to protect both its revenue and the wealth of Michael R. Bloomberg, which are still primarily generated by the terminals business.

I’ll address this more in Robot, Esq.

Borden refers to such financing by the acronym TPLF and explains that the funding foots the bill for litigation in exchange for a share of the recovery. “The hundreds of millions (and perhaps billions) of dollars of TPLF undoubtedly will drive up the demand for litigation attorneys,” Borden says. But the ripple effect of additional litigation will also will also spur businesses to hire more transactional and regulatory lawyers, he says, in an effort to head off litigation with properly structured transactions.

Borden notes a decline in BigLaw hiring, a drop in law school applications and a reduction in law grads, creating “a relative dearth of attorneys.” But he sees a turnaround on the horizon. An improving economy, TPLF and a smaller supply of lawyers “portend a perfect storm that will hit the legal market,” he says.

“The demand for legal services will inevitably turn to favor attorneys,” Borden writes. “When that happens, the lack of attorneys in the pipeline will create a substantial shortage of qualified attorneys. For law firms to meet the new demand for legal services, they will have to aggressively recruit the top law graduates. To entice them to join their firms, law firms will have to raise starting salaries to unprecedented heights, creating a market reversal of epic proportions.”

Of course how will firms decide which cases to invest in–that’s where legal prediction algorithms come into play. Call me, maybe.

At the Marriott Courtyard in New Haven, a card next to the ear plugs was very direct in its message.

These cheap ear plugs can probably resolve many noise complaints without the hotel having to do anything. Ear plugs are far more effective than a manager pounding on someone’s door at 2 in the morning.

Just don’t sleep through your alarm clock with the earlplugs in–it happens. I’ve found a vibrating ring tone on the nightstand is more discernible .

In the summer of 1939, Popular Science peered into the fantastical future of athleticswith a story headlined “New Inventions in the Field of Sports.” In between the “merry-go-round training machine” for rowers, and a proposal for polo on horses in water — a “thrilling new aquatic sport” — there was a futurist gem: the Electrical Umpire.

A quarter-page illustration detailed the intricate system of light beams comprising the guts of the (entirely fictional) machine. “Electric eyes” several feet to the left and right of each batter would determine whether the ball passed through the strike zone, defined as the area from the upper chest down to the knees. A projector strung along a clothesline 10 feet overhead would shoot light straight down at a mirror under home plate and recognize if the ball passed over the plate, if it had broken the vertical beam of light. When a pitch satisfied those two criteria — in the strike zone and over the plate — an indicator light signaled a strike.

Now, if only John Roberts could be digitized.

The report found that individuals will face “premium increases of nearly 100 percent on average, with potential highs eclipsing 400 percent. Meanwhile, small businesses can expect average premium increases in the small group market of up to 50 percent, with potential highs over 100 percent.”

One company said that new participants in the individual market could see a premium increase of 413 percent when new requirements on age rating and required benefits are taken into account, said the report. “The average yearly cost for a new customer in the individual market grows from $1,896 to $3,708 — a $1,812 cost increase,” it added.

The individual mandate, when fully phased in, will be roughly $1,000 a year. With these rising premiums, it becomes more and more rational for young, healthy, people to choose not to buy insurance. Politically, there is no way Congress would ever take the necessary steps to increase the mandate. Constitutionally, if the penalty rises to be greater than the cost of insurance, under the Roberts savings construction, it becomes suspect. This is a point I address at some length in my book. I suspect this issue will be with us for some time.

Here is the abstract:

Do I Have a Case? What is Our Likely Exposure? How much is this Going to Cost? What will happen if we leave this particular provision out of this contract? How can we best staff this particular legal matter? These are core questions asked by sophisticated clients such as general counsels as well as consumers at the retail level. Whether generated by a mental model or a sophisticated algorithm, prediction is a core component of the guidance that lawyers offer. Indeed, it is by generating informed answers to these types of questions that many lawyers earn their respective wage.

Every single day lawyers and law firms are providing predictions to their clients regarding their prospects in litigation and the cost associated with its pursuit (defense). How are these predictions being generated? Precisely what data or model is being leveraged? Could a subset of these predictions be improved by access to outcome data in a large number of ‘similar’ cases. Simply put, the answer is yes. Quantitative legal prediction already plays a significant role in certain practice areas and this role is likely increase as greater access to appropriate legal data becomes available.

This article is dedicated to highlighting the coming age of Quantitative Legal Prediction with hopes that practicing lawyers, law students and law schools will take heed and prepare to survive (thrive) in this new ordering. Simply put, most lawyers, law schools and law students are going to have to do more to prepare for the data driven future of this industry. In other words, welcome to Law’s Information Revolution and yeah – there is going to be math on the exam.

Dan’s work dovetails very nicely with my work on assisted decision making, and follows in the bold footsteps of Larry Ribstein’s work. Dan and I tend to be something of a travelling road show, and I’ve seen him present this paper a number of times.

Your online identity in the future is unlikely to be a simple Facebook page; instead it will be a constellation of profiles, from every online activity, that will be verified and perhaps even regulated by the government. Imagine all of your accounts— Facebook, Twitter, Skype, Google +, Netflix, New York Times subscription— linked to an “official profile.” Within search results, information tied to verified online profiles will be ranked higher than content without such verification, which will result in most users naturally clicking on the top (verified) results. The true cost of remaining anonymous, then, might be irrelevance; even the most fascinating content, if tied to an anonymous profile, simply won’t be seen because of its excessively low ranking.

Think about that for a second. As it stands now, the stories you see in your Facebook feed are not those of all of your friends. Rather, they are the stories that Facebooks thinks you may want to see. If facebook deems one of your friends not someone who interests you, then you will not see those updates. This has already happened to me. Facebook has buried a number of my friends, and I’ve missed updates that I would otherwise have wanted. Now, imagine that the key to being promoted on Facebook is through validating your account by providing personally identifiable information. Those who choose not to provide this information will disappear into obscurity.

One of the more troubling concepts is that certain states–most likely authoritarian regimes–will force people to obtain verified accounts.

Some governments will consider it too risky to have thousands of anonymous, untraceable and unverified citizens—“ hidden people”; they’ll want to know who is associated with each online account, and will require verification, at a state level, in order to exert control over the virtual world.

And even if such laws could not be passed in the United States, I could imagine various consumer privacy laws, passed with the intent of protecting data security, could arrive at this result indirectly. As Schmidt and Cohen note:

And, in the slightly less totalitarian autocracies, if the governments haven’t already mandated “official” government-verified profiles, they’ll certainly try to influence and control existing online identities with laws and monitoring techniques. They could pass laws that require social-networking profiles to contain certain personal information, like home address and mobile number, so that users are easier to monitor. They might build sophisticated computer algorithms that allow them to roam citizens’ public profiles looking for omissions of mandated information or the presence of inappropriate content.

Last week I was at a conference at Yale Law School, and commented on a paper that argued that in order to promote more free expression online, the government should take steps to intervene in the policing of social media accounts. The paper was vague on specifics, but suggested that the government could mandate that certain process be provided before terminating a social media account, or perhaps that search engines could not arbitrarily disappear a person (as I suggested above).

While I shared the paper’s concerns that Google or Facebook shuttering people into obscurity is bad for society, the prospect of the government interjecting itself into this process, and taking steps to force people into providing these kinds of information troubles me much, much more.

Especially because society’s desire to broadcast all aspects of life through social media has the effect of building the surveillance network that George Orwell could only have dreamed of.

But authoritarian regimes will put up a vicious fight. They will leverage the permanence of information and their control over mobile and Internet service providers to create an environment of heightened vulnerability for their citizens. What little privacy existed before will be long gone, because the handsets that citizens have with them at all times will double as the surveillance bugs regimes have long wished they could put in people’s homes. Technological solutions will protect only a distinct technically savvy minority, and only temporarily. Regimes will compromise devices before they are sold, giving them access to what everybody says, types and shares in public and in private. Citizens will be oblivious to how they might be vulnerable to giving up their own secrets. They will accidentally provide usable intelligence on themselves— particularly if they have an active online social life— and the state will use that to draw damning conclusions about who they are and what they might be up to. State-initiated malware and human error will give regimes more intelligence on their citizens than they could ever gather through non-digital means. Networks of citizens, offered desirable incentives by the state, will inform on their fellows. And the technology already exists for regimes to commandeer the cameras on laptops, virtually invade a dissident’s home without his or her knowledge, and both listen to and watch everything that is said and done there.

See also my previous work on privacy and social media after the Boston Marathon Bombers.

I’ll have more to say about this topic–particularly how the conceptualization of this type of data as protected speech may serve as a waning bulwark against the trek towards the dangers of this new digital age.