Recent discussions regarding the Real ID Act follow the same general path as many discussions about the trade-offs between security and privacy. These discussions typically begin with taking a security proposal and then weighing it against its costs to privacy and civil liberties. What is often not done, however, is to put the security proposal through meaningful scrutiny as an effective security measure. Instead, it is often assumed that the security measure is worthwhile, and the only question is whether it is worth the trade-off in privacy and civil liberties.
But what if security measures against terrorism were examined with a more critical eye? I believe that the risk of terrorism is not being assessed in a rational way and is receiving a disproportionate amount of resources. This can have grave consequences, probably resulting in significantly more loss of life than a major terrorist attack.
What is the most widely read work of jurisprudence by those in the legal system? Is it H.L.A. Hart’s The Concept of Law? Ronald Dworkin’s Law’s Empire? No . . . it’s actually the Multistate Bar Exam.
Almost all lawyers have read it. Although the precise text is different every year, the Bar exam presents a jurisprudence that transcends the specific language of its text. Each year, thousands of lawyers-to-be ponder over it, learning its profound teachings on the meaning of the law. It therefore comes as a great surprise that the Bar exam has received such scant scholarly attention.
Since this blog is read by many new law profs, I thought I’d recommend information privacy law as a course you might consider teaching. (I have a casebook in the field, so this is really a thinly-disguised self-plug.) Information privacy law remains a fairly young field, and it has yet to take hold as a course taught consistently in most law schools. I’m hoping to change all that. So if you’re interested in exploring issues involving information technology, criminal procedure, or free speech, here are a few reasons why you should consider adding information privacy law to your course mix:
In United States v. Councilman, a 1st Circuit panel held that email intercepted contemporaneously with its transmission did not fall under the protections of the Wiretap Act. The case went en banc and an opinion has yet to issue. Orin Kerr at the VC just wrote a post about recent developments about the issue. He writes:
Congress has introduced a number of statutory amendments to try to settle the matter. The best was introduced on April 28: Senator Leahy introduced S. 936, the E-Mail Privacy Act of 2005, which is a very short and sweet solution. The Leahy bill adds just a few words to the definition of “intercept” under the Wiretap Act to make its already implicit temporal scope textually explicit. It’s an elegant and correct amendment.
There’s been a ton of media exposure about security breaches at major companies. Most recently, Time Warner admitted it lost data on 600,000 current and former employees. Bank of America Lost data on over 1 million people. ChoicePoint sold personal information on about 145,000 people to identity thieves. And Lexis Nexis had data on about 310,000 people improperly accessed. USA Today adds it all up and concludes: