The Substantially Similar Weblog

The United States Supreme Court refused to hear the White House’s appeal in Walters v. Conant, a case Altshuler, Berzon (the firm I’m currently working for) has been working on for several years. The case involved the question of whether the federal government can punish doctors for recommending or discussing marijuana with their patients. The Supreme Court’s denial of cert means that the Ninth Circuit opinion stands, upholding a permanent injunction preventing the federal government from punishing physicians where the basis of the punishment is solely the physician’s professional recommendation of the use of medical marijuana. This is a major victory for the medical marijuana movement here in California and elsewhere.

Spam is now the biggest tech/society news item. Earthlink won $16.4 million and an injunction in federal court suing a spammer (stories in news.com.com, siliconvalley.com). At the same time, Earthlink is accused of patent infringement for their new challenge-response anti-spam technology (news.com, New York Times). SpamCon has established a legal defense fund for anti-spam groups (news.com story). Oregon is just one of many that states that has recently passed anti-spam legislation (requiring ADV to appear in subject lines for spam). AOL is blocking email that originates from cable modem/DSL dynamic IP addresses, as a kind of “scorched earth” spam prevention technique. Microsoft just announced new anti-spam tools (news.com).

As a side note, Microsoft is charging $21.95 for the anti-spam service. I wonder if this suggests the kind of symbiotic relationship that currently exists between Microsoft, virus writers, virus protection companies (everyone profits) might be extending into new realms. Having a captive audience of millions of “free” Hotmail users, they can make it unbearable to continue to use the service without subscribing to these additional features (more disk space, spam filters). Since Hotmail doesn’t allow you to automatically forward to other accounts, you might just be stuck (of course there are ways around this).

Larry Lessig has dramatically staked his job on a solution which involves establishing a bounty for anyone who tracks down spammers violating the law.

I don’t believe this issue is as pressing as everyone makes it out to be, and I wish Lessig would stake his job on something else.

Usually, you’ll see spam described as an “onslaught” “plague”, “scourge”, etc.. But is it really costing us millions (or billions) of dollars to deal with? My email address has been available on the Internet since at least 1991, and probably longer. I imagine almost every spam database in the world has 10 of my addresses. Yet I only see one or at most two spam emails a day, and always recognize them from their subject line. It takes all of 1-2 seconds to delete them.

For me, SpamAssassin works great. It catches the 100 or so spam messages I receive every day and puts them in a separate folder. Occasionally, I glance in that folder to check for false positives, but at this point it’s been months since I’ve had a single one (once in a while there will be “semi-spam” in the spam folder, for example, offers from my credit card company that I don’t care about but aren’t truly unsolicited). Other tools like Vipul’s Razor use a collaborative approach to filtering (SpamAssassin works in conjunction with Razor). Bogofilter uses a modified Bayesian technique, originally described in Paul Graham’s article A Plan for Spam, to weed out spam based on messages you’ve received. In my experience, any of these tools work better than the latest technology deployed by Microsoft, Yahoo!, or Earthlink. They’re also relatively invisible to the user.

It seems to me that a combination of simple technological measures combined with enforcement of existing anti-fraud laws should really take care of the problem, and it’s not worth all this hand-wringing “what are we going to do about SPAM???” debate. Almost every spam you receive has some way to purchase the advertised item, and even if you can’t track down the sender of the email, you can track down the merchant, if they hope to do any business with you! The States have a well-defined infrastructure in place for dealing with misleading advertising or unfair business practices.

Internet Email has always been easy, flexible, and simple. By enacting a barrage of anti-spam legislation and adopting stupid spam filtering technologies, we’re ruining the simple end-to-end nature of email. We also risk treading on the 1st amendment, as political and other protected speech gets ensnared in the spam net.

I suggest we just keep it simple.

The Supreme Court of the United States announced its decision on Eldred v. Ashcroft today.

It’s a sad day for the future of creativity. Eldred and the good guys lost, and Disney and the MPAA won.

You can read the majority opinion, authored by Ruth Bader Ginsburg as well as Justice Stevens’ dissent and Justice Breyer’s dissent.

I may have something for more to say on this later, but I’m mourning for the moment.

While the “State Action” doctrine is a troublesome obstacle to protecting many of the ideals embodied in Constitutional Rights, it is particularly problematic in the area of privacy. When people are victim of private discrimination, for example, they are still theoretically equal in the eyes of the law under the Fourteenth Amendment. Even as non-governmental entities acquire expansive spheres of control over health care, education, and the workplace, the individual retains her right to equal protection of the laws. In the case of privacy violations, however, there is more of an “all or nothing” effect. When a breach of privacy exposes the individual’s personal information to society at large, the damage is the same, and equally irremediable, whether caused by the state or a private actor.

It might make more sense, then, to construe privacy as an inalienable right of the individual against all of society, rather than as a negative right against the government. Besides solving the “state action” question, this conception would provide individuals with a baseline level of protection across all areas of life. The inquiry would more closely resemble Thirteenth Amendment jurisprudence rather than that of the Fourteenth, Fifth, or Fourth Amendments. A person cannot be a slave in the United States, regardless of whether it is a government-imposed condition or one simply resulting from the dealings of private parties. The Thirteenth Amendment advances a certain conception of personhood which is inviolate, and thus obviates the “state action” inquiry. Similarly, we might collectively believe that the sanctity of a person’s mind and body is inherent in our concept of humanity and liberty. Under this conception, the State would be bound to protect the privacy of its citizens, as contrasted with the current regime in which the citizens have certain privacy rights against the State.

The State Constitutions of California and Alaska, as well as legislation in many other States, are evidence that this conception has some merit. Under the Fourth Amendment, the Court has to decide how tightly bound a particular private actor’s behavior is with the state (e.g., the drug testing cases), and if the actor is sufficiently differentiated from the state, the Constitutional inquiry is over. Under State Constitutional regimes which protect privacy against private actors, however, a more interesting balancing test usually occurs, as in Hill v. NCAA. Although the balancing test doesn’t always provides strong privacy protection, at least it focuses on an important issue which is more relevant than the state action question.

As privacy invasive practices by private corporate and educational institutions increase, plaintiffs will seek protection under State Constitutions absent federal rights in this area. Just as in the United States before the Civil War, the parameters of personhood may thus vary haphazardly from state to state, if we accept the proposition that privacy is intrinsically tied up with the definition of the person. A uniform national standard would be a preferable result, but a patchwork of local protections appears more likely to occur.

—Robert Bork, in a lecture given to the American Enterprise Institute.

5:30am Cell phone alarm “loud” to make sure. Glass of grapefruit juice, comb, out the door.

5:50am Subway platform; just missed the last one. Apparently I’m not the only one up at this time.

6:05am Union Station. The Food Court Awakens. Everything Bagel with Cream Cheese, Large Urban Blend. Pocket some sugar for later.

6:20am Steps of the Court. Barely a glimmer behind the Capitol; sunrise at 7am? Yes, I’ll make it in, I’m #12.

7:20am Courtyard Plaza. Line up and take your ticket.

8:00am Court Cafeteria. Bacon and eggs. [I’ll pass].

8:30am Back out on the plaza. As the sun rises, it is colder, windier. The line extends across the plaza onto the sidewalk.

9:15am The bronze doors at the top of the stairs slide open; apparently they weigh several tons each.

9:40am We are finally lead up the stairs, herded into the vestibule. The police officer (“Iowa”) gives us a lecture. The paramount rule is silence.
9:50am No bags, coats, writing implements, laptops, or cell-phones are allowed into the courtroom. We shuffle into the coatroom to check our affairs. The coat check is free, and the locker for electronics only $0.25 (although I lost my first quarter).

9:55am Courtroom. More hallowed than you can shake a finger at. The chairs are tall, but the bench is not all that high up. Certainly not as intimidating as St. Peter’s Gate.

10:00am The Chief Justice accepts several dozen attorneys into the Supreme Court Bar. Each of them is introduced by a member of the Bar who says, “I am satisfied the applicant possesses the necessary qualifications.” They stand as they are introduced. The Clerk swears them in.

10:10am Where are Scalia and Stevens? Tall empty chairs.

10:35am The attorney for the respondents is a man with long hair. He is unable to address hypothetical situations that he hadn’t considered. The woman next to me was wearing a Moms for Megan’s Law pin which she had to remove upon entering the Court. On the other side, a women points at her boyfriend and whispers to me, “This is so boring. I’m here because he’s affected by it.”

10:45am Scalia and Stevens enter and take their seats. Perhaps they were having a bagel and coffee.

10:50am Clarence Thomas is really living up to his reputation. He’s yet to ask a question, although he does like to make funny faces.

11:00am The first case is over; many people leave. We get to move to more comfortable seats with a better view.

Sadly, I have no wisdom to share with you about this experience, only this brief chronology. You might read Are sex offenders uniquely dangerous? in the Washington Times for a good editorial about these two cases, which involved challenges to the Constitutionality of Megan’s Law.