From the author footnote of a new law review article by my colleague Dick Pierce, published in the July issue of the GW Law Review: I owe special thanks to Barbara Bruce, The George Washington University Law School Class of 2014, for providing me the best edit I have received in forty years of publishing […]
Author Archive | Orin Kerr
The Problem With the Administration “White Paper” on the Telephony Metadata Program
On Friday, the Obama Administration released a “white paper” articulating its case for the legality of the NSA call records program under Section 215 of the Patriot Act and under the Fourth Amendment. I found the “white paper” a somewhat frustrating read, as it is essentially a brief for the government’s side with no brief […]
“ABA Panel Favors Dropping Law School Tenure Requirement”
Karen Sloan has the story here.
Holder To Announce Major Change in Federal Policy on Charging Low-Level Drug Offenses
The New York Times reports: In a major shift in criminal justice policy, the Obama administration will move on Monday to ease overcrowding in federal prisons by ordering prosecutors to omit listing quantities of illegal substances in indictments for low-level drug cases, sidestepping federal laws that impose strict mandatory minimum sentences for drug-related offenses. Attorney […]
Cert Petition in Cotterman v. United States
I’ve blogged a lot about the Ninth Circuit’s computer search decision in United States v. Cotterman, and I thought I would flag the cert petition that Cotterman filed on August 5th. Taken in isolation, the cert petition that was filed normally would be denied. But this case may be different for the reason I discussed […]
Walsh on Lithwick on Virginia’s Cert Petition in Moose v. MacDonald
Over at Walsh’s Law, Kevin Walsh responds to Dahlia Lithwick’s recent column on the Virginia cert petition seeking to review the Fourth Circuit’s decision in MacDonald v. Moose. The issue in Moose is the effect of the Supreme Court’s decision in Lawrence v. Texas. The sodomy statutes at issue in Lawrence punish more conduct than […]
NSA Screening International E-mails and Texts for Foreign Intelligence Information
Charlie Savage has a significant article in the NY Times about the scope of NSA surveillance involving people inside the United States and outside the United States. In 50 U.S.C. 1881a(a), Congress approved surveillance via “the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.” That authorization […]
Second Circuit Reverses Judge Weinstein in Poker Case
A year ago, I had a short post on a new decision interpreting the federal gambling laws: Is Playing Texas Hold’ Em a Form of Gambling? No, rules Judge Jack Weinstein, at least for purposes of the Illegal Gambling Business Act (IGBA), 18 U.S.C. § 1955, because Texas Hold’em “is not predominately a game of […]
ABA Task Force Releases Draft of Recommendations to Reform Legal Education
The working paper is here, and it was released for comment yesterday. I’m generally skeptical of ABA reports, but there are a lot of promising ideas in this one. I don’t agree with everything in there, certainly, but there are some significant ideas in there worth taking seriously.
Tim Edgar on Transparency for NSA Surveillance Practices
My law school classmate Tim Edgar has a very interesting opinion essay in the Wall Street Journal arguing for greater transparency of the NSA’s surveillance activities. That message isn’t new, of course, but Tim’s unusual career gives him a special insight into the issue: He’s a former ACLU lawyer who then went to work for […]
No, the Obama Campaign Didn’t Violate the Computer Fraud and Abuse Act
I think my co-blogger Stewart Baker is missing the point of Michael Vatis’s post on the Obama campaign and the CFAA. Vatis argues that the Obama campaign violated the CFAA if you accept DOJ’s ridiculous view that violating Terms of Service of a website is itself CFAA violation. But Vatis does not argue that DOJ […]
Government Releases “Primary Order” for Telephony Metadata Under FISA Section 215
Readers will recall that when Glenn Greenwald released the FISC order indicating that the NSA was getting all domestic telephony metadata, that order was designated the “secondary order.” We have since heard that there was a “primary order” covering what the government is allowed to do with the data obtained under the “secondary order.” The […]
New Draft Article: The Next Generation Communications Privacy Act
I recently posted a new draft article, The Next Generation Communications Privacy Act, forthcoming in the University of Pennsylvania Law Review. I wrote the draft during the winter and spring, before the Edward Snowden NSA disclosures, although some aspects of the Snowden disclosures echo the themes of the article. Note that this article is only […]
Fifth Circuit Hands Down Long-Awaited Case on the Fourth Amendment, Cell-Site Data, and Ex Parte Decisionmaking
Last year, I blogged extensively about the pending Fifth Circuit case on Fourth Amendment protection for cell-site data. Readers may recall that this is the case in which a Magistrate Judge denied an application for a court order to obtain cell-site data on the ground that he thought the Fourth Amendment would be violated by […]
MIT Releases Hal Abelson Report on the Aaron Swartz Case
MIT has just released the long-awaited report by Hal Albelson about MIT’s involvement in the Aaron Swartz case: The 183-page report is here. I’m going to be reading it today and plan to blog on it more later, but for now here’s the conclusion: As the length of this report demonstrates, the narrative of MIT’s […]