Author Archive | Kenneth Anderson

Domestic Drone Regulation for Safety and Privacy

Today’s (Sunday, Sep 8, 2013) New York Times has a story by Anne Eisenberg, “Preflight Turbulence for Commercial Drones.”  The article combines two crucial topics in connection with drones (remotely piloted aerial vehicles, or unmanned aerial vehicles, UAVs, but my advice to the industry and USAF is that the People Have Spoken, and it’s “drones”): safety and privacy.  The article is interesting chiefly because it focuses on commercial drones (rather than either military drones, law enforcement drones, or hobbyist drones, as so many articles do).  It talks about the likely path of commercial uses of drones:

Companies in the United States are preparing for drones, too. Customers can buy an entire system, consisting of the aerial vehicle, software and a control station, for less than $100,000, with smaller systems going for $15,000 to $50,000, said Jeff Lovin, a senior vice president at Woolpert, a mapping and design firm in Dayton, Ohio. Woolpert owns six traditional, piloted twin-engine aircraft to collect data for aerial mapping; these typically cost $2 million to $3 million to buy, and several thousand dollars an hour to operate, he said.

Gavin Schrock, a professional surveyor and associate editor of Professional Surveyor magazine, says he thinks that surveyors will be among the first to add drones to their tool kits. Aerial systems are perfect for surveying locations like open-pit mines, he said. A small drone can fly over a pit, shuttling back and forth in overlapping rows, taking pictures that can be stitched together and converted into a three-dimensional model that is accurate to within a few inches. Such a system is safer than having a surveyor walk around the pit with traditional tools. “I hate doing that,” Mr. Schrock said. “It’s dangerous.”

For many commercial applications, in other words, the choice will become [...]

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Kiobel, Followed by DaimlerChrysler: What the Roberts and Breyer Views on Jurisdiction over Foreign Corporations Share

(First, big welcome to the newest Conspirator, Will Baude!)

A few months ago, in April, the Supreme Court handed down its decision in Kiobel v. Royal Dutch Petroleum Corp., giving guidance on the Alien Tort Statute.  In this rather lengthy post, I’m going to explore some ideas I’m using in an essay on Kiobel for the Cato Supreme Court Law Review’s upcoming issue; I’m still exploring my readings of the case and have not fully settled on them, and I also want to draw in a new upcoming case, Bauman v. DaimlerChrysler, discussed toward the end of the post.  Kiobel has occasioned much discussion in lawyer circles since it was handed down; Opinio Juris had a fine online symposium on it (see the related posts links at end of this linked post), and SCOTUSblog has a great roundup of the relevant documents and commentary.

So, starting with some background for readers unacquainted with the topic.  The ATS is a provision that dates back to the first Judiciary Act of 1789, and reads in its entirety:

“The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”

It made a couple of brief, unheralded appearances in the late 18th century and was all but forgotten until it was resurrected as a vehicle for human rights lawsuits in US courts in the 1980s, starting with the famous case of Filartiga v. Pena (2nd Circuit 1980), which allowed a suit to go forward under the ATS by a Paraguayan couple for the torture and disappearance of their son in Paraguay, against a former senior police official in Paraguay. Historical evidence about the purpose of the statute or its [...]

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The Multilateralist Blog Interview on How American Conservatives See the UN Today

David Bosco, who authors the outstanding “The Multilateralist” blog at Foreign Policy (where he is a contributing editor and who is also my American University colleague in the School of International Service), conducted an interview a few weeks ago with the Heritage Foundation’s Brett Schaefer and me on the United Nations.  The idea was to ask how American conservatives – Brett and me – view UN-US relations these days.  Brett is the editor of a fine book,ConUNdrum: The Limits of the United Nations and the Search for Alternatives; I am the author of a 2012 book, Living With the UN: American Responsibilities and International Order.  The Multilateralist piece is a transcript – outstandingly edited by Bosco – titled, “Can Conservatives Reconcile with the United Nations?”  (The link is at the Foreign website; free registration to access. Volokh readers’ lives will not be complete without both Brett’s and my books; you can read a sample couple of chapters from my book here in pdf at SSRN.) [...]

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Valley Fever

When one of my nephews fell ill with a strange pneumonia-like illness as a boy in the 1980s, his mother was told he had something called “Valley Fever.” My sister and her family lived in Bakersfield, California, and it was something I had heard of – my parents had lived there for a couple of years when I was young – but had more or less forgotten.  He got better, but I’m told still carries the fungus in his lungs.

Coccidioidomycosis used to be regarded as a rare disease, limited – I remember the maps from the 1970s and 80s – to the areas around Bakersfield, CA (the San Joaquin Valley) and a completely different location around Pima, AZ.  That was it.  The disease is caused by microscopic spores in the soil – dry and dusty soil in these locations – that, once disturbed, can float airborne and lodge in the moist environment of the lungs – or many other places in the body.  My nephew probably picked up the disease playing the Bakersfield dirt at his house or at school.  Doctors were able to treat his follow-on medical problems – in his case, pneumonia and lung conditions – but they had no treatment and no prevention for the spores themselves.

Later on, in the late 1990s, the head of a small but relatively cash-rich foundation in New York contacted me, wanting suggestions on a back channel for what kinds of new initiatives the foundation might undertake.  He wanted to something exciting, exotic, and foreign.  I told him he had a sizable amount of money, but probably not enough to make it worth initiating the infrastructure for a new development project abroad.  As an alternative, I suggested that he do something closer to home – something that would have impact [...]

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O Say Can You See

Happy 4th of July, everyone.  This is a holiday in which I think about the Declaration of Independence, but sometimes find myself, like today, drifting to think about America’s national anthem.  Views on the Star-Spangled Banner usually start – very sensibly – from the concession that as a piece of music, it’s mostly un-singable and not very attractive as a song.  But most countries have fairly lousy national anthems, being accidents of history and all and America is no exception, so get used to it.

I don’t think this is quite true.  Three terrific national anthems, and I’m sure there are others: Germany’s is genuinely beautiful (taken from a slow movement in a Haydn quartet).  South Africa’s is what a good, idealistic national hymn should be, and a lovely song to boot.  And, upon hearing the Marseillaise, who can resist at least a twitch to join the French Foreign Legion?  Pour la France and all. A touching moment of one of the recent French elections, after all, is a split screen YouTube video of the two candidates and their parties on election night, each singing the French national anthem with a heart and soul that I’ve never heard an American confab match.

It’s not for want of patriotic spirit.  But the musical hurdles are daunting – starting with a range of an octave and a fifth.  There’s a reason, in other words, for the evolution – at ball games, of course, but if you look around, you’ll see a wide variety of settings where it is customary to open with the national anthem – toward having someone else sing the song while everyone else puts hand over heart and mostly mouths the words.

The New York Times has an article in today’s Arts section on the many pitfalls for those [...]

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Getting the Details of Online Courses Right Is Likely to Be More Difficult Than Anticipated

I’m afraid I’ve been absent from blogging for quite a while, but am eager to pick it up again on a more regular basis … and one reason I’ve been away from blogging is some work on online higher ed.  There’s a lot of discussion about MOOCs – Massive Open Online Courses – and while I don’t doubt that these will play an important role in the future of higher ed, at the moment I’m more preoccupied with the basics of how live classroom courses in universities today integrate online work into them.  To cut to the chase, it’s a lot harder than it looks, and it happens badly – not just badly, but in ways that make learning more difficult if not impossible – a lot more often than I would have guessed, just based on some informal work I’ve been doing in the area (i.e., as a teacher and faculty looking to make better use of these options and practical recommendations on how to do it, not as a researcher studying it systematically).

For example, consider a basic undergraduate accounting course that I’ve been following (not at my university, btw).  The professor is an experienced teacher who teaches well, explains things well, and is well-regarded by the students.  But the department has opted for an accounting textbook that, like so many do these days, comes with a website for doing homework and assessment online.  Okay, there are some sites that do this well – and others that don’t – and a bunch that, to judge by student and faculty complaints, do not really keep the website up to date.  So, in this case, the professor taught using a slightly different way of presenting the basic concepts, slightly different terminology, with no explanation that could be got from the [...]

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The Case for Drones

Just in time for President Obama’s big speech Thursday at the National Defense University on counterterrorism policy and strategy, Commentary Magazine has made available early my June cover article, “The Case for Drones.”  (Available free and not behind the subscriber wall.)  It’s a long essay arguing that drones are both effective and ethical, and addressing a number of the objections to each of those propositions.

The article has a particular audience in mind. It is aimed at conservatives and Republican members of Congress especially, to remind them that their sometimes knee-jerk attacks on the “imperial” Obama presidency risks one major piece of national security that the Obama administration has got well and truly right.  There’s no lack of imperial presidency, abuse of power material for conservatives to work with- pick your issue this week – but this particular issue is one where, if conservatives look down the road, they ought to see that any president, Republican or Democrat, will need to have available the national security tools of drone warfare and national security.  It would be a remarkably foolish thing if, by inattention or inappropriate and merely reflexive attacks on the Obama administration’s drone policy, Republicans in Congress wound up permitting drone warfare to be made politically, morally, or legally illegitimate – just as a future Republican president enters office and discovers that, yes, there are terrorist threats best addressed by drones.  Congressional Republicans, in the midst of the many abuse of power hearings, ought nonetheless to be scheduling hearings to invite current and former administration officials to reiterate their legal views on drone warfare, with the express purpose of standing with the President on this tool of national security and its permanent, legal, and legitimate place.

Commentary is a conservative magazine, obviously, and I’m writing there as a conservative [...]

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An Unidentified Senior Administration Official on the Leak Investigations at Lawfare

At the Lawfare blog, a communication from an unidentified “senior national security official” in the Obama administration on the leak investigation against Fox News’ James Rosen.  It’s striking that a senior official would decide to communicate these views via a blog – though Lawfare (whose editor-in-chief is the former Washington Post journalist turned Brookings scholar Benjamin Wittes) has evolved into something closer to an edited magazine than a blog, with a readership that includes the key national security community in DC.  The unnamed official’s comments raise issues touched on by some of the analyses here; I leave it to others here at VC more expert than I in these areas to say what it means. An excerpt:

[T]he Administration has been roundly [criticized] for suggesting that a reporter who knowingly solicits classified information might be committing a crime. At the risk of violating the old adage about not picking a fight with someone who buys printer’s ink by the barrel, I want to take this on.

The Department of Justice did not claim that the Fox News reporter in the [Stephen Jin-Woo] Kim case committed a crime merely by publishing classified information. According to the Government’s filing in the case, the reporter in question actively asked people with access to classified information to break the law by providing him classified information he could publish. He used false names and “dead drop” email accounts to do so. In other words, he wasn’t someone to whom a whistleblower came to disclose information; he was actively asking people to violate the law, and enabling them to do so.

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Eliminating the “C” in Law School Grading?

Via Paul Caron at TaxProfBlog and the Wall Street Journal Law Blog, a proposal by Joshua Silverstein, law professor at Little Rock-Arkansas William Bowen School of Law, to eliminate the “C” in law school grading.  Here is the SSRN abstract for “A Case for Grade Inflation in Legal Education,” forthcoming in University of San Francisco Law Review:

This article contends that every American law school ought to substantially eliminate C grades by setting its good academic standing grade point average at the B- level. Grading systems that require or encourage law professors to award a significant number of C marks are flawed for two reasons. First, low grades damage students’ placement prospects. Employers frequently consider a job candidate’s absolute GPA in making hiring decisions. If a school systematically assigns inferior grades, its students are at an unfair disadvantage when competing for employment with students from institutions that award mostly A’s and B’s. Second, marks in the C range injure students psychologically. Students perceive C’s as a sign of failure. Accordingly, when they receive such grades, their stress level is exacerbated in unhealthy ways. This psychological harm is both intrinsically problematic and compromises the educational process. Substantially eliminating C grades will bring about critical improvements in both the fairness of the job market and the mental well-being of our students. These benefits outweigh any problems that might be caused or aggravated by inflated grades. C marks virtually always denote unsatisfactory work in American graduate education. Law schools are the primary exception to this convention. It is time we adopted the practice followed by the rest of the academy.

It is worth the time to read the whole article, because it is a more nuanced argument than perhaps the abstract suggests.  In fact, speaking as someone best described as a reluctant [...]

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The IRS’ Inquiries into Conservative Groups [Post Pulled; See Note]

[Note:  I’ve decided to pull this post about my experience with a conservative organization that had been contacted by the IRS about political activities because after further conversations with folks involved, I think the timing of letters from the IRS isn’t enough to connect this particular group, which has long had its tax exempt status, with the IRS’s admissions today.  My bad – I should have called the people involved directly and asked them before I put this up.  I’m going to pull it; I don’t think it’s got enough facts to support it. I’m going to leave up this explanation, however, in case people come looking for this post via cached copies somewhere. Apologies for raising the excitement on something I shouldn’t have.] [...]

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A Cautionary Tale About Driving and Bar Fitness

Law students thinking ahead about not just passing the bar exam, but also the fitness and character requirements might take a lesson from a former student of mine.  He contacted me with some alarm a few days ago to tell me that the Virginia bar committee that has to approve fitness and character of applicants had expressed concern in his case on account of a large number of traffic citations.  Not unpaid tickets or parking tickets, or anything as serious as a DUI – simple speeding, in nearly all cases caught by automatic cameras in DC.  How many?  Nine in the past 18 months – he says many for the same stretch of DC road caught in the middle of the night by automatic radar/camera.

I don’t think this will cause him problems in the end, but it’s not something one wants to have a discussion about with the bar fitness and character committee either.  I’m submitting a special character reference about his general sense of responsibility and law-abiding nature.  Anyway, word of caution to law students looking down the road to getting sworn in.  (At least until self-driving cars take over DC roads and remove temptation; some commentators see a future in which insurance companies give lower rates to self-driving car users, precisely to remove these kinds of issues, once the insurers conclude that on balance the robot car is safer.) [...]

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Bill to Be Introduced to Increase Armed Services Committees’ Oversight Over Special Operations

Rep. Mac Thornberry (R-Texas), member of the US House of Representatives Armed Services Committee, plans to introduce a bill that would increase Congressional oversight over kill-capture operations conducted outside of Afghanistan by the US military.  University of Texas law professor Robert Chesney discusses the proposed legislation over at Lawfare, and gives a section by section commentary.  Whether this is an important step or not depends on one’s starting point, of course; I agree with Chesney that it is a big deal and a welcome step to regularizing . (Though if one’s view is that all these operations are unlawful, or that  they require judicial oversight, or something else, whether from the Left of the Democratic Party or what we might call the Pauline wing of the Republican Party, then you won’t be much moved.)

Seen within the framework of US law and oversight of overseas use of force operations, this is an important step.  A couple of observations.  First, this (soon-to-be) proposed legislation is with respect to operations conducted by the US military under US Code Title 10; it does not cover CIA activities, which are already subject to oversight and reporting under US Code Title 50.  Second, it covers US military operations with respect to the lines of oversight running back to the Armed Services committees; essentially it increases the role of the Armed Services committees in oversight of US military operations in what it defines as “Sensitive Military Operations” – which in practice means clandestine Joint Special Operations Command (JSOC) activities.  It does not alter the existing oversight processes of Congressional intelligence committees governing covert action as defined in US Code Title 50, but extends and increases oversight over military operations.  Why this focus on military operations conducted by JSOC?

Counterintuitive as many might find it, [...]

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John Villasenor on Domestic Drones, Airspace Safety, and Privacy Protection

John Villasenor – a professor of engineering at UCLA and a Brookings Institution senior fellow – has a new article at Slate on the domestic use of drones.  (The article part of a conference held yesterday at the New America Foundation in conjunction with Arizona State University on domestic drone policy, with many fine participants; well worth checking out.)  The article’s fundamental point is that many features that will likely figure in FAA regulations intended to ensure safety in domestic airspace as drones are allowed to enter it will also be supportive of privacy concerns.  By no means does this make the problems of privacy go away, but it’s important to be aware of the ways in which safety regulation will affect and, in important ways, reinforce privacy.

For most of the 20th century, obtaining overhead images was difficult and expensive. Now, thanks to advances in unmanned aircraft systems—people in the aviation field tend to dislike the word drone—it has become easy and inexpensive, raising new and important privacy issues[PDF]. These issues need to be addressed primarily through legal frameworks: The Constitution, existing and new federal and state laws, and legal precedents regarding invasion of privacy will all play key roles in determining the bounds of acceptable information-gathering from UAS. But safety regulations will have an important and less widely appreciated secondary privacy role.

Why? Because safety regulations, which aim to ensure that aircraft do not pose a danger in the airspace or to people and property on the ground, obviously place restrictions on where and in what manner aircraft can be operated. Those same restrictions can also affect privacy from overhead observations from both government and nongovernment UAS. FAA regulations make it unlawful, for example, to operate any aircraft (whether manned or unmanned) “in

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Self-Driving Vehicles – How Soon and Who Will Bear the Liability Costs?

Self-driving cars are receiving a lot of attention these days – partly as the technologies that make them possible advance and partly because, well, we the public are more aware of them and are realizing there is quite a lot to discuss regarding their regulation and use.  As the technologies that appear to be making self-driving cars possible advance from the science fiction to the hypothetical to the possible to the likely, technological paths become sufficiently determinate that it makes sense to be talking about the social, legal, and regulatory structures for their use.

Indeed, we are probably a little late in holding these discussions, because knowledge of the social and regulatory conditions can, and does, have an influence on the technological designs, and so generally, the earlier the better.  A new and quite interesting debate at the Economist asks the question, whether and how soon these cars will be ready for market (it’s not a debate over whether they are desirable, but instead whether they will be feasible in the foreseeable future). It’s striking that the pro-side (holding that they will be, and sooner rather than later) essentially rests on technological feasibility, while the con side rests partly on skepticism about the technologies but very considerably on whether the social, economic, legal and regulatory hurdles will have been overcome.

Self-driving cars are special for a couple of reasons.  One is that they will (and already do) consist of a bundle of technologies – in one sense conceived in the usual robotics formulation of sensors, computation, and physical movement.  But in the case of cars, it’s better understood as automation of the distinct systems of a car: acceleration, braking, steering, etc.  These are being automated in separate systems, and combined together in the computer control of the total vehicle.

A [...]

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