Another environmental concern

Over the past decade law enforcement has cracked down on the production of methamphetamine, shutting over 100,000 homemade meth labs. Many of these labs were located in private homes. During production methamphetamine residue lodges in carpets, upholstery, drapes and other surfaces. When these former meth labs are sold unwitting buyers are exposed to the residue and suffer respiratory problems, severe enough in some cases to require the residents to vacate the homes. As reported in The National Law Journal on March 17 some buyers have sued the sellers and brokers involved in the sale for their failure to disclose the property’s former use as a meth lab. The article cites two state trial court decisions–Taylor Bean & Whittaker Mortgage Corp. v Wagner in Ohio and Bloor v Fritz in Washington–involving such claims; the Washington case is on appeal following the trial’s award of $94,000 in damages from the seller and broker to purchasers who were forced to move because of methamphetamine contamination. Fourteen states have passed laws mandating that owners disclose their property’s use for production of methamphetamine, and 13 states require that sellers clean up such former labs before selling them.

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Privacy and Security

A story in yesterday’s Wall Street Journal titled NSA’s Domestic Spying Grows as Agency Sweeps Up Data (subscription required) reports that–

According to current and former intelligence officials, the spy agency now monitors huge volumes of records of domestic emails and Internet searches as well as bank transfers, credit-card transactions, travel and telephone records. The NSA receives this so-called “transactional” data from other agencies or private companies, and its sophisticated software programs analyze the various transactions for suspicious patterns. Then they spit out leads to be explored by counterterrorism programs across the U.S. government, such as the NSA’s own Terrorist Surveillance Program, formed to intercept phone calls and emails between the U.S. and overseas without a judge’s approval when a link to al Qaeda is suspected.

The NSA’s enterprise involves a cluster of powerful intelligence-gathering programs, all of which sparked civil-liberties complaints when they came to light. They include a Federal Bureau of Investigation program to track telecommunications data once known as Carnivore, now called the Digital Collection System, and a U.S. arrangement with the world’s main international banking clearinghouse to track money movements.

The effort also ties into data from an ad-hoc collection of so-called “black programs” whose existence is undisclosed, the current and former officials say. Many of the programs in various agencies began years before the 9/11 attacks but have since been given greater reach. Among them, current and former intelligence officials say, is a longstanding Treasury Department program to collect individual financial data including wire transfers and credit-card transactions.

An NSA spokeswoman stated that the Agency “strictly follows laws and regulations designed to preserve every American’s privacy rights under the Fourth Amendment to the U.S. Constitution.” If you find comfort in that statement, consider this description of how the Agency uses its expanded domestic surveillance authority to pursue leads:

If a person suspected of terrorist connections is believed to be in a U.S. city — for instance, Detroit, a community with a high concentration of Muslim Americans –the government’s spy systems may be directed to collect and analyze all electronic communications into and out of the city. The haul can include records of phone calls, email headers and destinations, data on financial transactions and records of Internet browsing. The system also would collect information about other people, including those in the U.S., who communicated with people in Detroit.

The information collected “doesn’t generally include the contents of conversations or emails.” Generally. That’s a word we lawyers use to say “most of the time we don’t, unless we do.” Even without such content the NSA can identify the parties to phone calls and emails, their locations, and their cell phone numbers. The telecoms enable the NSA’s efforts either by copying all data through their switches to share with the NSA, or by ceding control to the NSA over the switches. The White House is pushing a bill that would immunize the telecoms from liability for privacy claims arising from this data collection. The NSA domestic surveillance program includes elements of and technology from the Pentagon’s Total Information Awareness initiative that Congress defunded in 2003 following criticism of TIA’s potential for civil rights abuses. Before it was killed the Pentagon renamed TIA to Terrorist Information Awareness to make it seem less creepy. Now the NSA is implementing TIA through its “black budget,” beyond effective non-NSA scrutiny.

The Journal story reminded me of a recent Wired column by the always-prescient Bruce Schneier: What Our Top Spy Doesn’t Get: Security and Privacy Aren’t Opposites. Schneir’s column focuses on a proposal from National Intelligence Director Michael McConnell to monitor all–“that’s right, all–” Internet communications:

In order for cyberspace to be policed, internet activity will have to be closely monitored. Ed Giorgio, who is working with McConnell on the plan, said that would mean giving the government the authority to examine the content of any e-mail, file transfer or Web search. “Google has records that could help in a cyber-investigation,” he said. Giorgio warned me, “We have a saying in this business: ‘Privacy and security are a zero-sum game.'”

This states it as baldly as one can. This administration’s top intelligence personnel consider every increase in security to require a corresponding decrease in privacy. As Scheier states “I’m sure they have that saying in their business. And it’s precisely why, when people in their business are in charge of government, it becomes a police state.” Scheier says privacy versus security is a false dichotomy, that the true dichotomy is between liberty and control–and that “liberty requires both security and privacy.”

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Thinking of Law School? Read This

A recent article in the Wall Street Journal titled “How to Cut Debt, Boost Job Prospects from Law School” (subscription required) addresses some issues raised here over the past few months about careers in the law (See Legal Careers, Not Covered by LSAT Prep, To Be* or Not to Be*, Women and the Law, Lawyer’s Life). The Journal article echoes much of the advice I give about law school; these are the highlights, reordered to my preferences.

  • Be a big fish. This is my primary piece of advice. Finishing at the top of your class at a regional law school will grab the attention of employers local employers. Unless you are extremely confident that you will place high enough in a nationally-ranked school to land the type of job you seek, going to a school where you can be a star will likely better serve your career.
  • Think about location. This goes hand-in-hand with being a big fish. “[I]n at least half of all states, at least 60% of graduates got an in-state job, according to the National Association for Law Placement, in part because most employers are more familiar with schools in their region.” If you want to find a job on the other side of the country then you should attend a nationally-ranked law school. If you will remain in the area after graduation then being in the 50th percentile of your class at a national school will not get you more interviews than being one of the top ten in your class at a regional school. The school’s alumni are likely to be well-entrenched in the local legal market and will open doors for a person at the top of his or her class.
  • Look for transfer opportunities. It is generally easier to get into a nationally-ranked school as a 2L than as a 1L. Be a big fish, excel in your first year, and you may be able to transfer to a nationally-ranked school.
  • Consider an in-state public school. “An in-state public law school costs about half as much, on average, as a private school or a public school for out-of-state residents.” If you will not attend a national law school, why pay considerably more to attend a regional school if there is a state alternative?
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Like Chalk Across a Blackboard

If, when you were growing up, your family always said “you should be a lawyer” or “you’ll make a great lawyer some day!”, what did it mean? It meant you were an argumentative, stubborn–and possibly obnoxious–pain in the butt. Not all lawyers fit that mold–I don’t, of course–but the popular conception of attorney-as-irritant finds constant reinforcement. Take these two stories: A Lawyer Bride Sues Her Florist (Wall Street Journal-Subscription Required) and At Firms With “No Jerks” Rules, Abusive Attorneys Need Not Apply. The first reports on New York litigator Elena Elbogen’s breach of contract suit against Posy Floral Design Studios for “substitut[ing] pastel pink and green hydrangeas for the dark rust and green hydrangeas that she had specified for the centerpieces . . . using wilted and/or browned flowers, leaving the event without filling half the centerpiece vases with water, and using dusty and dirty vases.” The bride and groom paid $27,435.14 for the flowers and are seeking $400,000 in damages. Stamos Arakos, co-owner of Posy Floral Design, responded “My father used to tell me, ‘Don’t deal with lawyers.’ Maybe he was right, God bless his soul.”

The “No Jerks” article discusses how companies are adopting hiring and firing practices to reduce the number of abusive bosses: “The emergence of these practices should be of particular interest to those working or hoping to work in the legal industry, where the only thing larger than the significant book of business may be the bearer’s ego.” For example, Perkins Coie began dealing directly with incidents of abuse a few years ago. “Associates who frequently yell at or mistreat secretaries damage their prospects of becoming partners” and Fortune magazine named the firm in its Top 100 Best Places to Work for five years in a row. This sounds great, and the article states firms are implementing these practices “regardless of how many hours the offenders bill or how much business they generate,” but I’m dubious about the last statement. I bet that a few million dollars in annual billings would still buys considerable latitude for jerky behavior in most firms.

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Random Articles

As the blog train begins powering up for the fall, a few news articles have caught my wandering attention:

  • 100,000 Gone Since 2001 (Bob Herbert, The New York Times 14-Aug-07) 100,000 people have been murdered in the U.S. since 9/11. “No heightening of consciousness has accompanied this slaughter, which had nothing to do with terrorism. The news media and most politicians have hardly bothered to notice. At the same time that we’re diligently confiscating water and toothpaste from air travelers, we’re handing over guns and bullets by the trainload to yahoos bent on blowing others into eternity in armed robberies, drug-dealing, gang violence, domestic assaults and other criminal acts.”
  • A New York Times article about former Surgeon General Dr. Richard H. Carmona, recounting how the Bush administration muzzled Carmona and politicized the post, quotes Carmona as saying “I increasingly witnessed a government that was more and more using theology and ideology to drive its policies and its people — stem cells, abortion, Plan B, the war and many more . . . Our go-it-alone so-called cowboy diplomacy has in fact isolated us from the world more than ever in our history.” The story is consistent with this administration’s promotion of cronyism, political loyalty, and ideological purity over competence, expertise, and fact-based analysis.
  • A Grass Roots Effort to Grow Old at Home discusses the movement to foster aging in place (a term which always makes me think of “ripening”) by delivering social, medical, and support services to elders in their homes. I read the article to be certain it credits Beacon Hill Village for its leadership role in this movement; it does. The executive director of Beacon Hill Village is a good friend and I’m pleased to see this non-profit acknowledged for its pioneering efforts.
  • Last, Who Owns the Concept if No One Signs the Papers? discusses an issue that students raise frequently: how can I prevent others from copying my great idea? The quick-and-dirty answer is this: you cannot protect ideas. You can protect the particular manifestation or expression of an idea through a patent, copyright, or trade secret, whichever might apply. The article focuses on the dispute between Cameron and Tyler Winklevoss, founders of ConnectU, and Mark Zuckerberg, founder of Facebook. The Winklevoss twins engaged Zuckergerg’s services as a coder to work on ConnectU, their Harvard University-based social network site. They claim Zuckerberg copied their sites program code and business plan to start Facebook and want Facebook’s assets turned over to them. The Winklevoss twins never paid Zuckerberg for his services, promising him to pay him later if they made money, and apparently never asked him to sign a non-disclosure agreement. Jason Pontin, the article’s author, states “I suspect that Facebook would not exist had it not been for ConnectU” but nevertheless concludes that ConnectU does not have a case against Zuckerberg.
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More Cause for Hopelessness

U.S. military involvement in World War II began on December 7, 1941 and ended on August 14, 1945, a period of 1,347 days in which Allied forces defeated the Axis forces of Germany, Japan, and Italy. President Bush’s “war on terror” began on September 11, 2001 and continues today, 2,135 days later and counting. This war has cost hundreds of thousands of lives and somewhere between $400-$500 billion and has polarized this country in a way unmatched since the era of the Vietnam War. What has it accomplished? The prosaic title of the threat assessment prepared by the National Counterterrorism Center says it all: Al-Qaida Better Positioned to Strike the West. Al-Qaida is thriving in Pakistan and, despite the time, money, and human cost, it has improved its financial, training, and communication resources. Pakistan, remember, has received billions of dollars in U.S. aid. Not a great return on our investment. The billions spent on intelligence and security produced a “gut feeling” in Homeland Security Secretary Michael Chertoff’s bowels that the United States faces an increased risk of terrorist attack this summer. This threat assessment does not even address how our disastrous Iraq venture has catalyzed creation of vehement anti-U.S. security threats.

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The Undead

Like Cool Hand Luke rising from the ground each time Dragline knocked him on his ass or like the living dead from the George Romero movies, Allofmp3.com refuses to submit, popping up after each execution with an amnesiac’s disregard for its back story. See None of MP3.com, AllofMP3.com Lives Yet, and AllofMP3.com–Is That All You’ve Got? This story reports that Russia caused the site to be shut down “to end criticism from the United States that Russia was failing to clamp down on music and video piracy.” By the time the press ran the story Media Services, the company behind AllofMP3.com, had opened a new site named mp3Sparks.com that it claims is legal under Russian law. Since the arguments for the new site’s legality echo those used to support Allofmp3.com we can expect this saga to continue. Frustrating, I’m sure, for parties on both sides of the issues but a boon to a professor of Internet law, this story captures the nailing-a-blob-of-mercury nature of cross-border Internet regulation.

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