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Following up on my previous post about how the pursuit of marriage equality has justified many departures from what we would normally call the Rule of Law (which are either ignored or justified), we have a related story from Pennsylvania.

The Register of Wills of Montgomery County has decided, on his own accord, that Pennsylvania’s ban on same-sex marriage violates the state constitution.

“I am going by my lights here. I am going by what I think is right,” stated Montgomery County Register of Wills D. Bruce Hanes. He began issuing the licenses Wednesday morning, a day after signaling his willingness to do so.

Hanes said he doesn’t believe the state statute limiting marriage licenses to heterosexual couples complies with the Pennsylvania Constitution.

Hanes, a lawyer, offered further reasoning for his actions:

Hanes, a lawyer who was elected register of wills in 2007, would not comment on the lawsuit Tuesday. But last week he laid out the legal basis for his decision to buck the Marriage Law. When a lesbian couple notified him of their intent to request a marriage license, Hanes said, he consulted with his solicitors and came to rest on the “inherent rights” and “equality” guaranteed in Article 1 of the Constitution. “Those are provisions of the Pennsylvania Constitution which I think are diametrically opposed to the Marriage Law,” Hanes said Wednesday. “Now, what am I to do? I took an oath.” Hanes said he also took into consideration the U.S. Supreme Court decision striking down the federal Defense of Marriage Act and Pennsylvania Attorney General Kathleen Kane’s announcement that she would not defend the state’s Marriage Law against an American Civil Liberties Union lawsuit.

So he took it upon himself to start issuing marriage licenses, in clear violation of the law of the Commonwealth. This is almost like an act of reverse civil disobedience (instead of not doing what the law requires, he is doing what the law forbids). If he doesn’t like enforcing the law, he can resign.

Now the Governor (who is also defending the SSM ban because the AG decided it was unconstitutional) has filed suit against Hanes, seeking an injunction.

In its request for an injunction, the Health Department said Kane’s “personal opinion” and the Supreme Court’s ruling have no bearing on what is happening in Montgomery County. “No public pronouncement of an executive official – even the attorney general of Pennsylvania – declaring his or her individual legal opinion that a law is unconstitutional relieves a public official such as the clerk from his mandatory duty to comply with the law,” state attorneys wrote. Hanes’ actions in turn have given the Corbett administration more ammunition against Kane, who they say is “simply wrong” and setting “a very troubling precedent.”

The Governor added that it was also improper for the AG to decline to defend the law.

But Schultz argued that Kane’s decision effectively usurped the authority of the courts to decide on the constitutionality of the state’s statutes. Schultz noted that no court has ruled on the constitutionality of Pennsylvania’s Marriage Law. As a result, he said, Kane’s declaration sets the stage for any attorney general to refuse to defend laws with which they personally disagree.

In an e-mailed response to Schultz later Tuesday, First Deputy Attorney General Adrian R. King Jr. disputed those contentions, saying Kane had made “not a personal determination but, rather, a legal determination” that the Marriage Law was unconstitutional. “Just as discriminatory laws based on race, religion, gender, disability, and ethnic origin have been struck down by the courts one by one, so, too will the Marriage Law,” King wrote. “In short, this is a watershed moment. It is certainly not the beginning of the ‘chaos and uncertainty’ you predict.”

But whose decision is it to make if a law is unconstitutional. King is likely correct that the courts will strike down Pennslyvania’s law in due time. So is it enough for state officials, at varying degrees of relevance (with all respect to the Register of Wills) to make this determination for themselves?

Andrew Cohen has the scoop with an interview given by Justice Kennedy that, apparently, no one else knew about. Here is AMK on the internet:

It’s interesting that the more technologically advanced we become the more vulnerable our freedoms are. I just don’t know quite what to do about that. The Internet is changing the world… But I am concerned that the Internet changes the way we think about thought. We think about thought as being just factual factoid information… But that’s not thought. That’s not reflection.

I gather the Justice has discovered Twitter.

I’m sure there will be voluminous analysis of Judge Vinson’s “Primary Collection Order” from the Foreign Intelligence Surveillance Court, which authorized the collection of metadata from Verizon, subject to many minimization procedures. In this post, I want to flag an important issue that may otherwise be ignored–the First Amendment.

The section in question is spread from pages 7-9 (including an entire page of redactions). It concerns how the government can conduct queries of the metadata.

For purposes of simplicity, I have typed out the relevant portions.

“provided, however, that NSA’s Office of General Counsel (OGC) shall first determine that any selection term reasonably believed to be used by a United States (U.S.) person is not regarded as associated with [REDACTED] on the basis of activities that are protected by the First Amendment to the Constitution.”

That is very significant. Granted, we do not have the full context of the order, but we can infer that Judge Vinson ordered NSA OGC to avoid conducting using search terms that would implicate activities protected by the First Amendment.

So what does this mean? A few possibilities. Most clearly, he is telling the NSA not to punish people for protected speech or association. But this is quite vague.

Another possible interpretation may relate to a potential overbreadth challenge. If NSA is using very broad search terms terms, a virtual dragnet, invariably they will suck in scores of metadata associated with communications central to the First Amendment–such as core political speech. Imagine if politicians or reporters were engaged in such communications. This could be viewed as a limitation with an eye towards not sweeping more broadly than necessary. Though, as we saw with the searches of AP phone records, this is probably not adhered to closely (don’t forget that AP is a corporation asserting free speech rights!).

Or, it could be making a freedom of association argument (akin to the arguments presented in Holder v. HLP), but there are no citations to any caselaw. This is doubtful. There is often a very fine line between expressing your views on a politics–views that may be very hostile to the current government–and supporting those deemed enemies of our government. I’ll leave it at that. I gather that, in theory, Vinson’s order would help to police against that. Though, this line is very vague, and unclear how the NSA treats it.

Vinson’s order could also  tap into what Justice Sotomayor referred to in Jones as the chilling effect of surveillance:  “[a]wareness that the Government may be watching chills associational and expressive freedoms.” (as pointed out by Howard Waserman).

Will Baude gave a shot at explaining how surveillance could violate the First Amendment, but was “skeptical.” Judge Vinson’s order may help shed light here. That’s not to say that any of these concerns are actually justiciable (until today, these arguments were not even known to the public). But, at least at some levels, the government is aware of how surveillance should be conducted with the First Amendment in mind.

In my new essay, “What Happens if Data is Speech,” I explore some of the First Amendment implications of affording data the protections of free speech. A related, and perhaps more relevant question for today, is what First Amendment claims may exist to challenge the broad collection of metadata.

Update: Vinson paraphrased the language from s. 215 of the Patriot Act (minus the word “solely”):

(2) An investigation conducted under this section shall—

(A) be conducted under guidelines approved by the Attorney General under Executive Order 12333 (or a successor order); and

(B) not be conducted of a United States person solely upon the basis of activities protected by the first amendment to the Constitution of the United States.

The Times reports that two advertising giants have merged, in an effort to fortify their big data offerings, in the pursuit of offering personalized advertisements:

But the announcement on Sunday of the merger of two industry giants, Omnicom and Publicis, to create the largest ad company in the world, signals that advertising is now firmly in the business of Big Data: collecting and selling the personal information of millions of consumers. . . .

For consumers, the merger is another signal that the business of marketing is becoming more personalized, often based on information that consumers may not even be aware they are sharing, including Web habits, social media activity and credit card histories. As advertisers collect and combine this data, consumers can expect to see ads targeted more specifically at them.

Advertisers like Nike, Comcast, Progressive and Procter & Gamble are now using automated exchanges — fast-paced, algorithmic bidding systems — to target individual consumers rather than the mass audiences that broadcasters and publishers serve up. Though still small, an increasing amount of the display ads that consumers see online have been sold through programmatic bidding channels.

In an interview in June, Scott Hagedorn, the chief executive of Annalect, a data marketing company that is part of the Omnicom Media Group, said advertisers can now determine, in milliseconds, whether someone looking for a car is a luxury car buyer or a used car buyer; based on that information, an advertiser can determine whether to even display an ad or not.

Advertising agencies already collect this data through a variety of sources, including so-called cookies, which track user behavior online. They also depend on partnerships with data companies like Axciom that collect and combine information like what Web sites a person visits with other streams of data, including use of store loyalty cards.

“We’ve done a lot in ramping up data analytics,” said Mr. Wren of Omnicom. “Collecting Big Data and being able to turn it into insights is the ambition of both companies, and it will be the ambition of the single company.”

I’m somewhat mixed on the idea of targeted ads. On the one hand, it filters out a lot of stuff I have no interest in, and only gives me stuff I may actually buy. On the other hand, in the meta sense, my past behavior begins to pigeonhole what I may do in the future. This has broader implications when we consider how integral services like Google are with how we make decisions.

In another article in the Times, a tech exec notes the awkwardness:

Daniel Gross, co-founder of another personal assistant app, Cue, said that was why it had started with alerts in which a person had already signaled interest, by creating a calendar entry, for example.

“It’s a really tricky problem, because on one hand you really want to give someone the best experience you possibly can,” he said. “And on the other hand, you don’t want someone to have this uncanny valley type of moment: ‘Oh my gosh, this feels too good.’ ”

As I discuss in What Happens if Data is speech?, Google curating the internet, and only showing us the information it thinks we want to see has very serious consequences.

As computational power increases, and big data gets bigger, what we know as search engines will soon transition into actual decision engines, that can anticipate what you want, and help you make better decisions. This is a topic I discuss at length in What Happens if Data is Speech?

Today, search engines are primarily used to help people find information. Ultimately, the decision of what to do with that information is still made by the user, though informed by what the computer suggests. For some time, Google has made clear that their goal is to help people make better decisions about their lives, and serve as our “constant companion,” capable of offering “the ubiquitous presence of a personal assistant that never stops working.” Google co-founders Larry Page and Sergey Brin “have asserted, the goal is to insert a chip inside your head for the most effortless search engine imaginable.” This is not just science fiction. Google Glass is but the first incarnation of this technology.

Tim Wu referred to such a technology as a “concierge” that can not only find information, but can “g[i]ve advice.” The concierge or adviser is similar to what I have elsewhere defined as “assisted decision making,” That is, relying on intelligent algorithms that can comb through vast amounts of data in order to assist people in making more informed decisions. Both visions of the technology further blur and break down the lines between the computer and the user. As internet technologies evolve from helping users retrieve information to helping users make decisions, and the line between human and program becomes blurred, concerns about constitutional scrutiny for data regulations become more potent.

The Times reports on a new wave of apps that are starting to make a dent in that area–apps that can anticipate what you want.

A range of start-ups and big companies like Google are working on what is known as predictive search — new tools that act as robotic personal assistants, anticipating what you need before you ask for it. Glance at your phone in the morning, for instance, and see an alert that you need to leave early for your next meeting because of traffic, even though you never told your phone you had a meeting, or where it was.

How does the phone know? Because an application has read your e-mail, scanned your calendar, tracked your location, parsed traffic patterns and figured out you need an extra half-hour to drive to the meeting.

This technology actually learns about you from your context, and understands what you want.

The technology is the latest development in Web search, and one of the first that is tailored to mobile devices. It does not even require people to enter a search query. Your context — location, time of day and digital activity — is the query, say the engineers who build these services.

…

“We can’t go on with eight meetings and 200 e-mails a day,” said N. Rao Machiraju, co-founder and chief executive of reQall, which sells its technology to other companies to make their own personal assistant apps. “We have a technology that isn’t waiting for you to ask it a question, but is anticipating what you need and when is the best time to deliver that.”

…

“By the time you search, something’s already failed,” said Phil Libin, chief executive of Evernote, a note-taking app that actively shows previous entries related to current circumstances.

Google even speaks in terms of an expert personal assistant.

“You can just imagine several years down the road, if that personal assistant was an expert in every field known to humankind,” said Amit Singhal, Google’s senior vice president for search.