This statement in a Slate review of Trey Parker's and Matt Stone's Team America: World Police struck me as odd:

[W]hen Alec Baldwin, Sean Penn, Tim Robbins, Susan Sarandon, and Janeane Garofolo moronically align themselves with Kim Jong-il and start wielding automatic weapons against Team America, well . . . Leftist actors learned from Vietnam not to cozy up to dictators: Jane Fonda, one of the best actresses of her generation, hasn't worked in more than a decade.

I certainly don't think Alec Baldwin et al. are big fans of Kim Jong-Il, but I suspect that this isn't exactly Parker & Stone's point (hard to tell for sure what their point is until I see the movie, but it's a fair bet that over-the-top comedians' comedy isn't exactly to be interpreted literally). But setting that aside, I have two questions.

(1) Jane Fonda worked quite a bit in the aftermath of the Vietnam war, when you'd think her sympathies with the North Vietnamese would have hurt her most, and then during the Reagan Administration. She then apparently did nothing until the forthcoming Monster-in-Law — including through the Clinton era. Is it really that plausible that Fonda's not working in the 1990s, while having worked through the 1970s and 1980s, stems from her pro-North Vietnam activities?

(2) Have leftist actors not been cozying up to Fidel Castro? Or is he not a dictator?

I'll be giving a talk on Mechanisms of the Slippery Slope this coming Monday, (1) at 12:30 pm at Columbia Law school, 116th & Amsterdam, room 101, and (2) at 3:30 pm at Fordham Law School, 140 W. 62nd St., McNally Amphitheater. Both events are free and I think both are open to the public.

The Foundation for Individual Rights in Education, whom I have generally found quite trustworthy, reports what sounds like a glaring threat of a First Amendment violation:

Less than one year after the University of Massachusetts Amherst defended the free speech rights of a columnist who celebrated the death of Army Ranger Pat Tillman, the university has campaigned to persecute nine students who were seen in photographs containing a caricature of one of them as the "Grand Wizard" of the Ku Klux Klan. The drawing, which was intended to mock both the Klan itself and spurious accusations of "racism" made during the course of a student government election campaign, depicted the so-called Grand Wizard with his eyes crossed and his tongue hanging out of his mouth. The mere existence of such a drawing led UMass to charge the nine students with "harassment" and threaten them with penalties ranging from criminal charges to expulsion. . . .

On March 26, 2004, after the elections for the UMass Student Government Association (SGA), several candidates gathered in a student organization office for a post-election party. One student at the party, Patrick Higgins, was defeated in a race for SGA President during which he was labeled a "racist" for opposing a plan to set aside a number of seats in the Student Senate solely for members of a campus group called ALANA. (Eventually the plan was judged unconstitutional by UMass's own general counsel.) ALANA claims to represent "African, Latino/a, Asian/Pacific Islander, and Native American" students at UMass.

In an effort to mock the charges of racism, a person at the party drew a caricature of Higgins as a member of the Ku Klux Klan on a dry-erase board. The "Grand Wizard" was depicted wearing a pointed hat and a cape, and holding a burning cross. With his eyes crossed and his tongue hanging out of his mouth, the "Wizard" had a speech bubble written over his head that read, "I LOVE ALANA!!" See the caricature here. One of the partygoers took photographs of the caricature and posted them on his personal website. An unknown student later circulated the photographs around campus, along with others that appear to show some of the partygoers drinking alcohol. . . .

After controversy erupted, UMass Amherst Vice Chancellor for Student Affairs Michael Gargano told the Daily Collegian campus newspaper, "I have the authority to remove these people from office . . . I could give them 500 hours of community service, have them conduct an open forum discussion; I have a variety of sanctions at my disposal. I'm not ruling out dismissal." Gargano further articulated his threats at a September 27 "diversity panel," stating, "[I]f the Student Government Association doesn't move on it, I will. Are we clear? Resign!"

The same "diversity panel," consisting of Gargano, SGA President Eduardo Bustamante, and several UMass faculty members, labeled the nine students in the photos the "KKK Nine," implying that they supported the Ku Klux Klan. . . . .

UMass has charged all nine students with "harassment conduct less than a physical attack" and other charges related to the consumption of alcohol. During the resulting judicial proceedings, UMass has offered "settlements" that include punishments far more severe than those typically imposed for first-time alcohol offenses.

On October 7, FIRE wrote UMass Amherst Chancellor John V. Lombardi on behalf of the students, pointing out that not only was the drawing irresponsibly mischaracterized [as an experssion of support for the KKK], but that it was also constitutionally protected expression that UMass, as a state institution, was forbidden to punish. FIRE pointed out that "the First Amendment protects even extraordinarily offensive satire and parody," and emphasized that any punishment decisions "must be made without reference to the 'offensive' caricature." Read FIRE's letter to UMass here.

UMass's actions in this case stand in stark contrast to its treatment of Rene Gonzalez, a UMass graduate student who wrote an article for the Daily Collegian last spring that called NFL player turned Army Ranger Pat Tillman an "idiot" and said that "this was a 'G.I. Joe' guy who got what was coming to him." UMass rightly refused to take official action against Gonzalez. Instead, UMass system President Jack Wilson responded, "While I recognize Rene Gonzalez's right of free speech, I must also assert my right of free speech to criticize what he said."

"President Wilson made the right decision once, and we are hopeful that he will do so again in the face of the hysteria surrounding this drawing. We hope that President Wilson and Chancellor Lombardi will demonstrate continued faith in the power of the marketplace of ideas to deal with expression that some might find offensive. Otherwise, UMass will become just one other disappointing example of the many colleges and universities that simply give up on free speech," concluded FIRE's French. . . .

Punishing students for this sort of speech -- whether dismissing them or giving them community service or requiring them to conduct discussions -- is clearly a First Amendment violation. It would be so even if they genuinely expressed support for the KKK, which they weren't doing.

It's a little less clear whether a university could remove student government officials based on their constitutionally protected speech. I doubt it, since the officials aren't university employees, but represent the students; but the matter isn't completely clear. But even if the university has this legal power, surely this is not a sensible situation to use it.

In any case, I think it's appalling that University officials would be threatening students with clearly unconstitutional disciplinary sanctions for their constitutionally protected expression. One might have thought that the last 15 years of campus speech code litigation would have taught public university officials that labeling speech "harassment conduct" (note again the "harassment" rhetoric, apparently borrowed from hostile environment harassment law) can't magically dissolve the constraints imposed by the First Amendment. Apparently one would have thought wrong.

Disney, which was apparently a major driving force behind the Copyright Term Extension Act's retroactive extension of preexisting copyrights -- Mickey Mouse was about to fall in the public domain, and now Disney has 20 more years of monopoly over him -- is apparently in some trouble because of that very Act:

"Peter and the Starcatchers" by Dave Barry and Ridley Pearson and published by Disney's Hyperion Books is billed as a prequel to the children's classic, "Peter Pan."

Great Ormond Street [hospital for children] was left the royalties to Peter Pan in 1929 by the author, J.M. Barrie . . . . This weekend sees the UK premiere of a film about Barrie's life, "Finding Neverland" -- starring Johnny Depp, Kate Winslet and Dustin Hoffman. The hospital will receive royalties from book excerpts portrayed in the film.

But the hospital charity says is getting nothing from "Peter and the Starcatchers" . . . . They say the book has been published without its permission.

A spokesman for the hospital told CNN that Great Ormond Street held the copyright to Peter Pan in the United States until 2023 -- although it runs out in EU countries in 2007 -- and said: "We are considering our options."

Disney, meanwhile, has insisted that Peter Pan is out of copyright in the United States.

"The copyright to the J.M. Barrie stories expired in the U.S. prior to 1998, the effective date of the U.S. Copyright Extension Act, and thus were ineligible for any extension of their term," Disney said in a statement to the Daily Telegraph. . . .

I'm pretty sure that Disney is right: Peter Pan was apparently published from 1902 to 1911 (there were different versions), so even if we use the latest date, 1911, the book fell into the public domain in the U.S. 75 years late, in 1986. (At the time, the term of protection was, more or less, the author's life plus 50 years for works written in 1978 or later, or 75 years for works published before 1978.) The Copyright Term Extension Act didn't revive the copyrights on such works, though it did extend -- inappropriately, in my view -- those copyrights that were still in effect. Unless I'm missing something here, the hospital would have no case.

So Disney should be off the hook, as should others who want to build on Peter Pan. That's good, for the same reason that it's good that we have a rich public domain full of other works (Shakespeare, Swift, Dickens, and so on) that people can reinterpret, adapt, and republish. There would have been some poetic justice in Disney's being stuck with the consequences of its earlier lobbying, especially since Disney, like other authors and employers of authors, has so often taken advantage of a rich public domain in making its work. But at first glance, it looks like Disney's source material in this instance is indeed in the public domain, despite the Term Extension Act.

Cool post about a funny answer on Jeopardy; be sure to check out the comments as well. Many thanks to my former student Kevan Choset.

Jim's post below led me to look up the case he Supreme Court he mentioned, Evans v. United States. I had known that Jim had written about extortion and also about blackmail, but I hadn't remembered the role of his article in Evans. Having looked at the case again, let me just say that this is the sort of citation by Supreme Court opinions that we law professors dream about. ("The Court's historical analysis rests upon a theory set forth in one law review article," the dissent complained.) I am even more impressed by Jim than I had been before.

Reader Anna Kipnis passes along this Las Vegas TV station story about possible election fraud:

Employees of a private voter registration company allege that hundreds, perhaps thousands of voters who may think they are registered will be rudely surprised on election day. The company claims hundreds of registration forms were thrown in the trash. . . .

The out-of-state firm has been in Las Vegas for the past few months, registering voters. It employed up to 300 part-time workers and collected hundreds of registrations per day, but former employees of the company say that Voters Outreach of America only wanted Republican registrations.

Two former workers say they personally witnessed company supervisors rip up and trash registration forms signed by Democrats.

"We caught her taking Democrats out of my pile, handed them to her assistant and he ripped them up right in front of us. I grabbed some of them out of the garbage and she tells her assisatnt to get those from me," said Eric Russell, former Voters Outreach employee.

Eric Russell managed to retrieve a pile of shredded paperwork including signed voter registration forms, all from Democrats. We took them to the Clark County Election Department and confirmed that they had not, in fact, been filed with the county as required by law. . . .

Voter registration drives have often been a partisan activity, since the parties have a strong incentive to register voters who they think will be sympathic; and there's nothing wrong in parties targeting places that they think are likely to be frequented by party sympathizers. But obviously it's quite bad — and I suspect seriously criminal — to purport to register someone but then throw out their forms, making them think that they're now officially registered when they really aren't.

UPDATE: Reader Brett Bellmore passes along another story about similar fraud:

FURTHER UPDATE (Feb. 8, 2006): It seems that the charges in the update were in fact not true. According to the St. Petersburg Times (Dec. 15, 2005),

Fourteen months after a campaign to increase Florida's minimum wage drew allegations of voter fraud, a federal judge in South Florida has ruled at least some of those accusations against grass roots political group ACORN were so baseless they amount to defamation.

U.S. District Judge James King has dismissed a lawsuit brought by Mac Stuart, a former ACORN employee, saying Stuart never provided evidence to support his claim that he was fired because he uncovered voter fraud. . . .

The judge upheld ACORN's counterclaim that Stuart's lack of evidence made his allegations libel and slander. The group has always claimed it fired Stuart for insubordination. . . .

An investigation by the Florida Department of Law Enforcement also found no evidence of criminal activity at ACORN, department officials confirmed Wednesday. . . .

I'm sorry to have inadvertently passed along the erroneous accusations, but glad to be able to report this latest development.

between Prof. John Choon Yoo (Berkeley) and Prof. George Harris (McGeorge, counsel to John Walker Lindh): Eliot Fladen, who helped put it together, has a quasi-transcript.

Andrew Sullivan gives "Derbyshire Award" nominations to examples of what he sees as overheated and bigoted or otherwise unfair rhetoric. I think his nominations are often quite insightful, but here's one that I can't agree with:

DERBYSHIRE AWARD NOMINEE: "[A]bortion is in our day what slavery was in Lincoln's. To vote for John Kerry in 2004 would be far worse, however, than to have voted against Lincoln and for his Democratic opponent in 1860. Stephen Douglas at least supported allowing states that opposed slavery to ban it. And he did not favor federal funding or subsidies for slavery. John Kerry takes the opposite view on both points when it comes to abortion. On the great evil of his own day, Senator Douglas was merely John Kerry-lite." - Robert George and Gerald Bradley, co-authors of the FMA, in NRO. Now I get the Dred Scott reference.

I don't think abortion is murder (and, no, I won't get into that substantive debate, simply because I don't think there's much new that can be added to it). But I know that some decent people do think so, and it's an entirely understandable position.

Even someone who is otherwise libertarian, or even otherwise liberal, may reach this position if he just accepts one moral axiom that I don't accept — that human life begins at conception — but that isn't inherently inconsistent with my other moral views. Just as I don't find it ridiculous that some people would treat chimpanzees and gorillas as having a right to life (and even a right to life of the same magnitude as do humans), so I don't find it ridiculous that some people would take the same view about fetuses. (It's conceivable that a libertarian who believes that life begins at conception might nonetheless conclude that abortion should be permissible in cases of rape, but let's aside this issue for now; the great majority of pregnancies do not result from rape.)

And if I am right on this, then surely the George & Bradley position is quite understandable, and even not particularly intemperate. If abortion is murder, then Roe v. Wade is not just a legal authorization for genocide, but a constitutional protection for genocide. The slavery of millions was a heinous evil, but murder of a million children per year would be an even greater evil. And indeed the pro-abortion-rights position would require all states to tolerate such murder; the mainstream pro-slavery position would have at least allowed states to outlaw slavery, and thus to permit slavery to be reduced and even eliminated through normal majoritarian legislative processes.

Now my sense is that many people who take the pro-life position don't really think that abortion is exactly the same as murder, or else we'd be seeing a lot more anti-abortion activity, including more attacks on abortion clinics, more killings of abortion providers, and so on. Likewise, we'd be seeing more calls for punishing the woman — perhaps with the death penalty, or perhaps with life imprisonment or close to it — as well as the abortion provider.

But if one does think that it's murder, or even that it's killing that's roughly the moral equivalent of slavery if not precisely of genocide, then the George & Bradley perspective is right, and quite unsurprising. That isn't reason to agree with them: If one is pro-choice, then they're wrong. But it seems to me that there's nothing worthy of mockery in their view.

UPDATE: Reader Stuart Buck correctly pointed out that I'm being somewhat inexact in using "human life." What I meant, and what is usually meant by this, is "human life of the sort entitled to rights."

The two are often thought of as different at the end of life -- a human being who is entirely brain-dead may still be said to be "alive," but many people would think that it's permissible to stop artificial life support for him. They may also be thought of as different at the beginning of life: Some may say that human life does begin at conception, but that the fetus doesn't become a rights-bearing creature until has developed to some level; just as a human stops being a rights-bearing creature once it has lost enough function, for instance when it's brain-dead. It's thus more accurate to say that the debate isn't about when human life as such begins or ends, but about when rights-holding human life begins or ends.

In any case, I add this for the sake of precision; it doesn't affect my main analysis above.

Corporate law maven Stephen Bainbridge writes:

Sinclair Broadcasting Group Inc., which owns 60-odd TV stations in many major US media markets, has ordered its stations to preempt ordinary programming in order to air "Stolen Honor: Wounds That Never Heal," a film about Senator John Kerry's Vietnam record that many regard as being anti-Kerry.

Some have suggested that Sinclair shareholders sue Sinclair's board of directors to prevent the airing of the program and/or to recover damages. Would such a suit succeed? The short answer: almost certainly not. The long answer follows. . . .

Go to his post, linked to above, for that long answer.

Please expect even slower response to e-mail (and more likelihood of no response at all) than usual. Very sorry.

A reader asks, so we answer: It rhymes with "pollock" (in English, of course; it's different in Russian).

InstaPundit posts about this, together with an e-mail from a reader speculating why the server company may have just given FBI the whole servers:

I work in a huge company with a lot of rack-mounted servers.

We have no "documented process" that an Operator (or even Technician) could provide the contents of a server.

We have mainframe tape drives and remote backup systems, but they are all proprietary -- and complicated to use.

It's not like we can just burn a DL-DVD (or 10+) and provide a backup of the hundreds of gigs of data that a server holds. Not only do we not have the burner or the media, we also don't have the procedures. If it's not documented and approved, an Operator cannot perform the action on the production data. And only an Operator can perform tasks relating to production data -- not Technicians.

It would be far, far easier to just shut down the boxes, pull them, and give them to the Feds. Two non-production servers could be re-assigned and automated restores queued. The process for swapping out failed servers (which is what this simulates) is documented and proceduralized.

That's how we would handle it, if it ever came up.

I can't say, though, whether this would be the standard operating procedure at most hosting companies.

Nonetheless, even if Kerry was hearkening back to his experience prosecuting organized crime — including organized crime that ran illegal gambling, and perhaps even (by analogy) organized crime that ran prostitution — I'm still puzzled why he'd use prostitution and illegal gambling as an analogy, rather than murder, arson, extortion enforced by violence, and so on.

After all, when prosecutors crack down on a crime organization that controls prostitution, it's not just that they won't eliminate prostitution altogether: They're highly unlikely to even substantially diminish it. They may destroy the organized crime-run prostitution rings, but this will still leave a vast amount of prostitution out there, perhaps even involving the very same prostitutes.

In fact, cracking down on the crime organization might even sometimes increase the amount of prostitution, if for instance the organization was violently blocking new competition. In any case, while organized crime control of prostitution might be largely though not completely supressible (perhaps most effectively by legalizing prostitution), prostitution itself does not seem to be even largely suppressible, given current, past, and likely future political realities. Certainly law enforcement doesn't treat it as something that can be vastly reduced, or that is even worth vastly reducing.

I don't know to what extent this is true of illegal gambling, but I suspect that something similar operates there as well. One can certainly fight, with considerable success, organized crime control of gambling. But I suspect that most prosecutors' offices don't expect that they can vastly reduce the amount of illegal gambling as such, and don't try very hard to do it. And again, the main strategy for reducing illegal gambling seems to be broadening legal gambling.

So I continue to be troubled by Kerry's choice of analogies in his quote, which as you recall is this:

When . . . Kerry [was asked] what it would take for Americans to feel safe again, he displayed a much less apocalyptic worldview. "We have to get back to the place we were, where terrorists are not the focus of our lives, but they're a nuisance," Kerry said. "As a former law-enforcement person, I know we're never going to end prostitution. We're never going to end illegal gambling. But we're going to reduce it, organized crime, to a level where it isn't on the rise. It isn't threatening people's lives every day, and fundamentally, it's something that you continue to fight, but it's not threatening the fabric of your life."

And more broadly, my thought experiment challenge in the Analogy about Analogies post still stands:

Let's say that in response to a sharp increase in the number of rapes, or of racist anti-black violence, or anti-Semitic violence, a President John Kerry had declared War on Rape / War on Racism / War on Anti-Semitism (a somewhat more metaphorical war than the War on Terrorism, but still close enough).

Let's also say that Governor George W. Bush, who was challenging President Kerry in the presidential election wanted to argue that this is a different sort of war, one in which we can't expect total victory. He certainly wasn't arguing that nothing should be done about racism, anti-black violence, or anti-Semitic violence. He had his own proposals, though ones that Kerry's supporters thought weren't tough enough, and were otherwise misguided. But he wanted to point out that we should be realistic about this: We shouldn't talk the rhetoric of total victory, where we had to realize that some background level of rape, anti-black violence, or anti-Semitic violence was inevitable. And let's say that this is how he made this point:

We have to get back to the place we were, where [rapists / Klansmen / anti-Semitic attackers] are not the focus of our lives, but they're a nuisance. As a former law-enforcement person, I know we're never going to end prostitution. We're never going to end illegal gambling. But we're going to reduce it, organized crime, to a level where it isn't on the rise. It isn't threatening people's lives every day, and fundamentally, it's something that you continue to fight, but it's not threatening the fabric of your life.

The letter of this argument is quite correct: Indeed, even the best strategy could at best just reduce the incidence of rape, anti-black violence, and anti-Semitic violence to a level that, while regrettable, is in some sense tolerable.

But would we be happy with Governor Bush's use of the analogy to prostitution or illegal gambling (for more details, see below)? Or would we think that, though the letter is accurate, the use of such an analogy seems inconsistent with the spirit that we're looking for in someone who can effectively fight the very serious evils that need to be fought?

This story about the seizure of some Indymedia servers is intriguing and potentially troubling, depending on the relevant facts, but maddeningly vague about those facts (though the vagueness might well be because the Web hosting company is quiet, not because the BBC knows stuff it isn't telling):

The FBI has shut down some 20 sites which were part of an alternative media network known as Indymedia.

A US court order forced the firm hosting the material to hand over two servers in the UK used by the group. . . .

The reasons behind the seizure are unclear but the FBI has reportedly said the action was taken at the request of Italian and Swiss authorities. . . .

The servers affected were run by Rackspace, a US web hosting company with offices in London.

It said it had received a court order from the US authorities last Thursday to hand over the computer equipment at its UK hosting facility. . . . It said it was responding to an order issued under the Mutual Legal Assistance Treaty. Under the agreement, countries assist each other in investigations such as international terrorism, kidnapping and money laundering[.]

The reasons behind the action against the Indymedia websites are unclear. . . .

"Indymedia had been asked last month by the FBI to remove a story about Swiss undercover police from one of the websites hosted at Rackspace," said [Indymedia] in a statement.

"It is not known, however, whether Thursday's order is related to that incident since the order was issued to Rackspace and not to Indymedia." . . .

A FBI spokesperson told the AFP news agency that it was not an FBI operation, saying the order had been issued at the request of Italian and Swiss authorities. . . .

The seizure has sparked off protests from journalist groups. . . .

The UK site of Indymedia is back up and running but several of the other 20 sites affected are still offline. . . .

Here are a few possibly important points, though based on guesses.

1. It sounds to me like the order involved was "turn over evidence," not "stop operating." The servers seem to have been seized because they supposedly contain evidence relevant to some investigation. There doesn't seem to be any legal requirement that the sites be shut down, though of course they'll be down for some time while the hosting company (or some other company, if this one doesn't want to be involved any more) puts the sites — presumably from backups or cached versions — on some other server.

2. It also sounds like the order was a subpoena, not a search warrant (or some special order that's closer to a subpoena than to a search warrant). In the U.S., police searches of private property must comply with the Fourth Amendment, which often requires a warrant based on probable cause to believe that the property contains evidence of a crime. But subpoenas — orders that someone testify, or turn over documents — do not require probable cause. They can be issued based simply on a showing that they are reasonably likely to yield relevant information, directly or indirectly.

You can be called to testify (even to testify about First Amendment activity, such as a defendant's conversations with you) without a showing of probable cause. Likewise, you or a business can be called to turn over material in your possession without such a showing.

I suspect that this case involves a subpoena rather than a search warrant because I doubt the FBI would have any authority to execute search warrants in the U.K. I therefore think that they delivered the order to the company, the company complied, and the FBI hauled away the stuff. [UPDATE: My friend and coblogger Orin Kerr points to this article, which makes clear that the order was indeed a subpoena, not a search warrant.]

3. In the U.S., there are special First Amendment restrictions on seizures of constitutionally protected material, developed in the obscenity context but applicable elsewhere. To quote the Supreme Court in Fort Wayne Books v. Indiana (1989),

[T]his Court has repeatedly held that rigorous procedural safeguards must be employed before expressive materials can be seized as "obscene." . . . [T]he Court invalidated large-scale confiscations of books and films, where numerous copies of selected books were seized without a prior adversarial hearing on their obscenity. In those cases, and the ones that immediately came after them, the Court established that pretrial seizures of expressive materials could only be undertaken pursuant to a "procedure 'designed to focus searchingly on the question of obscenity.'"

We refined that approach further in our subsequent decisions. . . . [T]he Court noted that "seizing films to destroy them or to block their distribution or exhibition is a very different matter from seizing a single copy of a film for the bona fide purpose of preserving it as evidence in a criminal proceeding." As a result, we concluded that until there was a "judicial determination of the obscenity issue in an adversary proceeding," exhibition of a film could not be restrained by seizing all the available copies of it. The same is obviously true for books or any other expressive materials. While a single copy of a book or film may be seized and retained for evidentiary purposes based on a finding of probable cause, the publication may not be taken out of circulation completely until there has been a determination of obscenity after an adversary hearing.

Thus, while the general rule under the Fourth Amendment is that any and all contraband, instrumentalities, and evidence of crimes may be seized on probable cause (and even without a warrant in various circumstances), it is otherwise when materials presumptively protected by the First Amendment are involved.

4. Nonetheless, it's not completely clear what exactly this would mean here. First, the classic distinction between (A) seizing a copy of a book for evidence purposes and leaving the store free to distribute other copies and (B) seizing the whole stock because you think it's all likely to be contraband doesn't quite apply here: The seizure is for evidentiary purposes, but it's likely to also interfere with Indymedia's ability to distribute its material, albeit likely only for a few days, if the material is properly backed up. It thus seems to fall into a gray area between the seizure of one book and the seizure of all copies of that book (though maybe it's close to the seizure of the movie theater's reel of film, which is likely the only copy in its possession, but which likely could be replaced in a few days). Second, it's not clear whether the rules I cited above, which were developed in the context of searches, also apply to subpoenas.

5. It's also not completely clear how these rules apply to subpoenas outside the U.S.; I would presume that a U.S. court order served on a U.S. company would be governed by the Fourth Amendment even if the property involved is overseas, but I can't be positive. I would also presume that the order would also be constrained by the First Amendment (see below).

6. Finally, the most important question is the vaguest of all: What exactly is the underlying justification for the subpoena? If there's reason to believe that the Web server contains evidence of, say, illegal money laundering activity, and that the best way of getting this evidence is getting the entire server rather than just having the company turn over the records related to one particular account, the subpoena seems eminently justifiable.

On the other hand, if the relevant information is obviously in just one particular place on the disks, the normal procedure would be to have the company turn over copies of those records. I doubt that AOL, for instance, should be asked to turn over a whole computer (or array of computers) simply because there's a subpoena for one subscriber's records. A subpoena that asks for the whole server

Likewise, if the subpoena is for evidence of what would in the U.S. be constitutionally protected speech — e.g., if some country is subpoenaing the computer to get evidence of anti-Islamic or neo-Nazi speech — then I don't think a U.S. court should be allowed to order it seized. (There may be some uncertainty about that because the information is not in the U.S., see item 5 above; but my sense is that the First Amendment would apply to U.S. court orders, and U.S. courts' enforcement of foreign requests, aimed at U.S. citizens or businesses even if the order is to be enforced outside the U.S. There is some caselaw, for instance, barring U.S. courts from enforcing foreign court judgments that are based on what would in the U.S. be constitutionally protected speech; not exactly what's going on here, but close in some respects.)

7. Finally, I think the Privacy Protection Act of 1980 probably wouldn't apply; as best I can tell, it has generally been read as applying only to government searches of media offices, not subpoenas. See, e.g., State v. Salsbury, 129 Idaho 307 (1996) ("Basically, the act implements a 'subpoena first' rule which requires, with a few exceptions, that a law enforcement officer use a subpoena first, rather than a search warrant to obtain evidence from any person planning to publicly communicate information."). It's true that here the subpoena would be followed by a government search of the servers, but it seems to me that the Privacy Protection Act would likely still not apply — but I can't claim to be an expert on the Act.

In any case, those are my tentative thoughts on what seems an interesting — and potentially highly controversial — story. I would love to hear (1) more information on the factual details behind the story, if anyone knows them, and (2) more information on legal questions from any lawyer or law professor who is an expert on the field (lay speculation about the way things ought to be is probably not going to be that helpful).

Here's a thought experiment related to the Kerry quote below. Let's say that in response to a sharp increase in the number of rapes, or of racist anti-black violence, or anti-Semitic violence, a President John Kerry had declared War on Rape / War on Racism / War on Anti-Semitism (a somewhat more metaphorical war than the War on Terrorism, but still close enough).

Let's also say that Governor George W. Bush, who was challenging President Kerry in the presidential election wanted to argue that this is a different sort of war, one in which we can't expect total victory. He certainly wasn't arguing that nothing should be done about racism, anti-black violence, or anti-Semitic violence. He had his own proposals, though ones that Kerry's supporters thought weren't tough enough, and were otherwise misguided. But he wanted to point out that we should be realistic about this: We shouldn't talk the rhetoric of total victory, where we had to realize that some background level of rape, anti-black violence, or anti-Semitic violence was inevitable. And let's say that this is how he made this point:

We have to get back to the place we were, where [rapists / Klansmen / anti-Semitic attackers] are not the focus of our lives, but they're a nuisance. As a former law-enforcement person, I know we're never going to end prostitution. We're never going to end illegal gambling. But we're going to reduce it, organized crime, to a level where it isn't on the rise. It isn't threatening people's lives every day, and fundamentally, it's something that you continue to fight, but it's not threatening the fabric of your life.

The letter of this argument is quite correct: Indeed, even the best strategy could at best just reduce the incidence of rape, anti-black violence, and anti-Semitic violence to a level that, while regrettable, is in some sense tolerable.

But would we be happy with Governor Bush's use of the analogy to prostitution or illegal gambling (for more details, see below)? Or would we think that, though the letter is accurate, the use of such an analogy seems inconsistent with the spirit that we're looking for in someone who can effectively fight the very serious evils that need to be fought?

From a long and interesting article in today's New York Times Magazine:

When I asked Kerry what it would take for Americans to feel safe again, he displayed a much less apocalyptic worldview. "We have to get back to the place we were, where terrorists are not the focus of our lives, but they're a nuisance," Kerry said. "As a former law-enforcement person, I know we're never going to end prostitution. We're never going to end illegal gambling. But we're going to reduce it, organized crime, to a level where it isn't on the rise. It isn't threatening people's lives every day, and fundamentally, it's something that you continue to fight, but it's not threatening the fabric of your life."

I see Kerry's point: Terrorists, unlike Nazi Germany or the USSR, can't be entirely defeated, because there'll always be the possibility that some more springing up. We can end the war on some particular terrorists by killing them all or getting them to stop, but we can't end the war on terrorism generally that way. The best we can hope for is that there'll be a lot fewer terrorist attacks. That's certainly an important point, and it's worth keeping in mind.

But what remarkable analogies Kerry started with: prostitution and illegal gambling. The way law enforcement has dealt with prostitution and illegal gambling is by occasionally trying to shut down the most visible and obvious instances, tolerating what is likely millions of violations of the law per year, de jure legalizing many sorts of gambling, and de jure legalizing one sort of prostitution in Nevada, and de facto legalizing many sorts of prostitution almost everywhere; as best I can tell, "escort services" are very rarely prosecuted, to the point that they are listed in the Yellow Pages.

These are examples of practical surrender, or at least a cease-fire punctuated by occasional but largely half-hearted and ineffectual sorties. It's true that illegal gambling and prostitution aren't "threatening the fabric of [American] life," but that's because they never threatened it that much in the first place. One can live in a nation with millions of acts of prostitution or illegal gambling per year or per day. There are good reasons for simply calling off those wars altogether. Surely the strategy for dealing with terrorism must be very different, in nearly every conceivable way, from the strategy for dealing with prostitution or illegal gambling. (Maybe if Kerry had simply compared terrorism to organized crime, the analogy might have been a bit closer. But even there, it would be pretty distant, and in any event "organized crime" seemed in his quote to be a way of characterizing certain kinds of prostitution or illegal gambling offenses — he didn't even refer to the more harmful forms of organized crime.)

I realize that quotes in newspaper articles (yes, even in the New York Times) can be taken out of context. Still, this was a pretty long and self-contained quote, which suggests that Kerry was indeed making this analogy, and making it deliberately. And it strikes me as a singularly inapt analogy to make, an analogy that ought to make one question its user's underlying thinking about the problem.