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Surveillance, Scale, and Standing

Fourth Amendment jurisprudence has always had a contentious relationship with innovation. From wiretapping pay phones to GPS units, advancing technology has continued to provide the government with increasingly powerful surveillance tools, and in case after case courts have been forced to restrict the use of this technology to comply with constitutional limitations. To some degree, this conflict is unavoidable. Technology looks towards the future, expanding our abilities in ways that are often difficult to predict. Law, with its reliance upon precedent, faces the past. Technical innovation necessarily precedes legal innovation, and great complexity often resides in the gap between the two.

FISA Amendments Act Is Way Worse for Privacy Than Title III

Advocates for renewal of the FISA Amendments Act (FAA) often argue that the statute poses no more harm to the privacy of innocent Americans than does the Wiretap Act, also known as Title III. After all, when FBI agents are tapping a suspected drug courier’s phones, his friends or mother may also call. How is the FAA any different?

Actually, there are many important differences between Title III, the FAA and even traditional FISA intercept orders. These differences mean that FAA is far more intrusive than Title III and poses a categorically different threat to the privacy of innocent Americans.

The FISA Amendments Act Authorizes Warrantless Spying on Americans

Next week, the lame duck Congress will take up the issue of whether to extend the Foreign Intelligence Surveillance Act (FISA) Amendments Act (FAA) of 2008. The House of Representatives passed a five year extention, but during the the floor debate on that bill, lawmakers demonstrated a fundamental misunderstanding about how the FAA affects the privacy of Americans on American soil.

Five Nonobvious Ways Seattle Is Wired

I recently moved from San Francisco to Seattle.  Among my concerns were (a) weather, (b) Mexican food, and (c) the technology sector.  There is a sea of clouds outside my office right now and the best Mexican food in town ("El Camion") parks behind a Safeway in Ballard.  But let me tell you: Seattle has not disappointed on technology.

Even setting aside the obvious (Microsoft, Amazon, Nintendo, the Science Fiction Hall of Fame, etc.), this city is wired.  Here are five of my favorite examples:

Fair Use Prospers on Campus

Last week's decision in Authors Guild v. HathiTrust -- upholding the Mass Digitization Project (MPD) -- was a big victory for fair use. The MDP is a project where university libraries and Google have together digitized over 10 million books to allow for full-text searches, preservation, and access for people with print disabilities. When the Authors Guild sued for copyright infringement, HathiTrust defended the suit by arguing that the MDP is fair use.

Judge Baer upheld the MDP. His decision recognizes that the project is a massive public good: it is a tool for scholarship, prevents the loss of our cultural heritage, and provides unparalleled access for the visually impaired. Significantly, he found that these educational purposes are "transformational" in a way that supports fair use.

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