The University of Chicago Law School Faculty Blog

California Court Overprotects Teen Privacy

Over at Concurring Opinions, the always-interesting Dan Solove has a neat post up about a privacy case arising out of a California high school, which the New York Times covered last week.  The case involves a homosexual teenager who was "out" to many fellow students, but not to her parents.  A school administrator learned of the teen's orientation, and informed her parents, causing a great deal of family turmoil.  One of the legal questions raised is whether the teenager had a "reasonable expectation of privacy" in her sexual orientation.  The court said "yes," and Dan Solove likes that result, invoking a paper I recently published in our law review to support the court's decision.

I'm always happy to see my arguments cited by others, but I'd part ways with Dan (and the court) on this interesting case.  While U.S. courts often protect privacy too little, I think the California court here may be on the path toward overprotecting privacy.

Seventh Circuit Adds Insult to Injury in Teen Sex Tape Case

The Seventh Circuit Court of Appeals, based here in Chicago, has just issued a frustrating opinion in a privacy case, and compounded that opinion with an egregious administrative error that itself invaded the privacy of a young woman.  In Doe v. Smith, the court considered an appeal by the plaintiff, who was a sixteen year old girl when she engaged in sexual intercourse with Jason Smith. According to Doe's complaint, Smith surreptitiously recorded their sexual encounter using a hidden video camera and then emailed copies of the tape to buddies at his high school. One of these friends then allegedly posted a copy of the video on the Internet. Doe sued Smith for invasion of privacy and violations of the federal wiretap act.  The court ruled, quite plausibly, that the district court erred in dismissing the plaintiff's federal cause of action under the wiretap act.  The court followed this holding up with a remand instruction that is, in my view, extremely unfortunate and threatens to undercut legal privacy protections substantially.  Scrutinizing the caption of the case, the court wondered whether the plaintiff should be allowed to proceed as a Jane Doe. 

White Settlement, Ave Maria, Sex Offenders, and Exclusionary Vibes

The blogosphere has been abuzz with critical commentary on plans to develop a conservative Catholic neighborhood surrounding Ave Maria University's new campus in Florida. (See, e.g., this post, this one over here with lots of comments, and this one with an avalanche of comments.)  By and large, bloggers have been incredibly hostile, dubbing the community a "Catholic Jonestown."  There's been less reaction so far to an interesting New York Times story (registration required) on "White Settlement, Texas" and the controversy generated by a mayor who wanted the town's name changed to something less polarizing. His constituents overwhelmingly voted to keep the name unchanged, and some are now trying to remove him from office. Finally, I've blogged before about sex offender-free subdivisions and posed the question of why so much energy has been expended on excluding sex offenders, as opposed to say murderers or burglars, from neighborhoods.

In a forthcoming Michigan Law Review article that I've just posted on SSRN (you can download it for free here), I connect all of these issues. In that paper, I present a partial defense of Ave Maria's efforts to promote residential Catholic homogeneity; I argue that community names like "White Settlement" can be just as bad as blatant, overt, racial exclusion from neighborhoods; and I suggest that information asymmetries explain the rush to ban sex offenders, but not other felons, from new neighborhoods.   

The Monorail Episode Redux

Seattle's lengthy flirtation with a municipal monorail came to an end in yesterday's municipal elections.  Voters who had approved pro-monorail initiatives in four separate previous elections finally ran out of patience with a public works project whose budget had ballooned far beyond initial estimates.  By the date of Tuesday's vote, Seattle had spent $200 million on the monorail without laying any track.  A bit over $60 million of this money went toward land and right-of-way acquisition, but tens of millions were spent on consultants' reports, feasibility studies, staffing, hundreds of public meetings, debt service, and, of course, legal fees.  Having shut down the monorail, Seattle voters have absorbed an enormous sunk cost, and Seattle motorists can expect to pay hundreds of dollars each in monorail taxes over the next several years so that the project can pay off its debts.  Anyone who has watched a classic Simpsons' episode might have seen this coming.

There are a number of lessons here.

Have We Seen the Last of Harriet?

Article III Groupie is reporting that Harriet Meirs plans to stay on as White House Counsel.  I wonder if the President has something else in store for Miers.  Namely, there is apparently one vacancy on the U.S. Court of Appeals for the Fifth Circuit already, and several alleged short-listers currently serve on that court, raising the possibility of another vacancy in the coming weeks.  Whatever her shortcomings as a Justice, Miers seems like a perfectly plausible Fifth Circuit judge.  Plus, her nomination to that appellate court will give legal scholars and court watchers lots of evidence to answer the "what if?" question concerning Miers' ill-fated nomination to the High Court.  Given that the President probably feels badly about the way his hapless friend was treated, a life-tenure appointment with chambers in Dallas seems like an obvious consolation prize. 

James Loewen's Fascinating New Book and Trying to Shame All-White Enclaves

I've spent the better part of the last two days reading sociologist James W. Loewen's terrific new book, Sundown Towns: A Hidden Dimension of American Racism.  I try to avoid cliches like "must-read," but the adjective seems apt for anyone interested in race and residential segregation.  Loewen's research is exhaustive and interesting, and stands as a powerful refutation of the idea that contemporary racial segregation results from voluntary choices by private actors.  Loewen documents the prevalence of municipal ordinances that prohibited African Americans from residing in particular towns and shows how these ordinances were supplemented by ugly roadsigns at the town limits stating, "Ni--er, Don't let the sun set on you in [this town]."  Many of these signs stayed up during the 1970s and a handful persisted into the 1990s.  Loewen recounts his own investigations of many sundown towns, but perhaps the most chilling is his account of Villa Grove, Illinois, where at 6pm every evening a siren atop the town's water tower rang out, reminding African Americans to get out of town.  Loewen's interviews confirmed that contemporary Villa Grove's residents understood full well the siren's purpose.  The siren-sounding practice continued until 1999[!] when it ceased, not because of shame or belated signs of conscious among the town's residents, but because residents living near the water tower complained about the noise. 

Chicago's Phantom Professors

Larry Solum's Legal Theory Blog links to a new study by David Horowitz and Joseph Light purporting to demonstrate that the nation's elite law and journalism faculties lack ideological diversity. The study, which Cass discussed a couple of days ago, singles out the "supposedly conservative" University of Chicago Law School faculty for criticism after determining that Democrats outnumber Republicans on the faculty 55 to 8. Curiously, the study finds no registered libertarians on the Chicago faculty. Solum expects "this work will provoke a strong reaction." . . . Uh, yeah. My strong reaction is where the heck did all these Chicago law professors come from?  The study claims to exclude clinical faculty and adjunct faculty, but still manages to find 100 full-time law professors at the University Chicago, or 67 more professors than our own web site indicates we have (show "full-time faculty"). According to the table on page five of Horowitz and Light's paper, Chicago has a larger faculty than Harvard, Columbia, and NYU! Perhaps Saul Levmore has finally succeeded in his secret plan to create an army of Cass Sunstein clones. In any event, Chicago's genuine ideological and intellectual diversity among students and faculty is one of its greatest charms, and Horowitz and Light ought to fact check their own work before jumping to conclusions. (I'll leave it to others to debate whether Democrat v. Republican partisan affiliation is a useful measure of ideological diversity on law faculties.)

Friendster and Symmetrical Privacy

The social networking site Friendster got into a lot of trouble with some of its members recently by changing its ground rules. Friendster, along with similar social networking sites, allows individuals to create profiles of themselves on the Internet and then look up profiles belonging to friends, potential romantic interests, and long lost acquaintances. One of Friendster’s neatest functionalities is the ability to see beyond one degree of separation (i.e. to friends-of-friends), which exponentially expands the range of one’s possible social contacts. (For a paper on social networks and their privacy implications, go here.)

Taking Freenet Seriously: A Response to Picker on Peer-to-Peer

Randy raises a fascinating question below about the appropriate uses for Peer-to-Peer technologies, and he and Tim Wu have begun an interesting dialogue in the comments. Let me suggest an alternative answer to Tim’s.

Peer-to-Peer technologies have substantial utility in those circumstances where anonymity or decentralization are desirable. So, as Ian Clarke has long argued with respect to Freenet, peer-to-peer can be an effective mechanism for enabling free political speech in those parts of the world that have repressive governments. It is relatively easy for a repressive government to shut down one or a dozen central servers, but virtually impossible for them to shut down all content-hosting peers, unless they’re willing to turn off Internet access altogether. Similarly, with central severs, it is much easier to compile a list of the Internet addresses belonging to content downloaders, but much harder to do this effectively when the distribution channels are peer-to-peer. There is enormous potential for these kinds of technologies to promote freedom and democracy in authoritarian regimes and robust, uninhibited debate in freer societies where legal liability concerns and social norms constrain discourse unduly.