No Trespass

When Florida v. Jardines, the case where an officer approached a house with a drug-sniffing dog, first came down, Orin Kerr and others noted that the Supreme Court majority never once used the word "trespass." The Jardines concurrence and dissent used the word, and the author of Jardines, Justice Scalia, had used "trespass" repeatedly in United States v. Jones from last term. So why doesn't he use the word in Jardines? Because there really is no trespass test? Because he has new clerks? Just a coincidence?

Judge Posner’s Surveillance Argument Would Not Withstand An Economic Analysis

Judge Richard Posner took the occasion of the Boston bombing to remind us of his view that privacy should lose out to other values. Privacy, argues Judge Posner, is largely about concealing truths “that, if known, would make it more difficult for us to achieve our personal goals.” For instance: privacy helps the victims of domestic violence achieve their personal goal of living free from fear; it helps the elderly achieve their personal goal of staying off of marketing “sucker lists;” and it helps children achieve their personal goal of avoiding sexual predators online.

Second Circuit Victory for Richard Prince and Appropriation Art

Today the Second Circuit Court of Appeals issued a long-awaited decision in favor of fair use in Cariou v. Prince. Reversing the district court’s finding of infringement, the Court held that Richard Prince’s use of Patrick Cariou’s photographs in 25 of his 30 Canal Series paintings was a fair use. The decision affirms an important tradition in modern art that relies on the appropriation of existing images to create highly expressive works with new meaning.

CISPA 2.0 Likely Stalled in Senate

According to a US News report, a spokesperson for the U.S. Senate Committee on Commerce, Science and Transportation suggests that the Senate will not take up CISPA 2.0 and instead will work towards breaking it up into separate bills.  The article also quotes Committee chairman Senator Jay Rockefeller (D-WV) confirming what many of us have been saying: that CISPA 2.0's privacy protections "were insufficient."

CISPA 2.0 Clears The House: Outcome Hazy

As expected, CISPA 2.0 passed the House of Representatives yesterday and the various privacy protections sought through amendments were dropped.  Although much has and will continue to be written about the merits (or lack thereof) of the bill -- especially its infamous "notwithstanding any other provision of law" clause -- I think this also provides opportunity to comment more generally upon the nature of modern American lawmaking pertaining to cybersecurity.


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