Developing and Articulating a Core Theory of the Case

Posted in cyberlaw, Practical Lawyering in Cyberspace, The Law on September 27th, 2007

The Egilman Complaint leaves out many details of the story, which are then supplied by the Answer. Is plaintiff’s case assisted by noting only those facts favorable to his case, or does it give the defendant an edge by detracting from his credibility? If the latter, is this factor amplified by the way credibility itself plays into the substance of the story? (for example, do you believe the critical article was planted as a false story to test defendants?)In the McGraw-Hill case, does the plaintiffs’ emphasis on Google’s value and profit motive change the reader’s perception of the library project? Does Google’s titling of the project, and description of it in their answer alter this perception?

After reading the complaint, what is the impression one gets of the plaintiffs’ identities? Is the ordering of the parties to list the educational companies first a tactic? Does it play into their theory of the case, and the picture they are attempting to paint on both sides?

In its answer, Google states that the plaintiff has used “rhetoric and legal argument” disallowed by the FRCP, in response to the allegation that there is “no need” for the project. If this is a violation of the FRCP, do you think it was an accidental one, or a tactical decision? What are the likely repercussions of including legal argument instead of just factual allegations and legal conclusions? Might it be a good idea for lawyers to use this tactic if the risks are low?

In the Viacom complaint, the plaintiff makes use of the verb ‘perform’ to describe YouTube’s actions. Is this a necessary step towards disallowing Google use of the safe harbor provisions, or is it a rhetoric device to make Google seem like a more active participant? (Or is it both?) If the term sounds awkward and disingenuous, does that affect your view of Viacom’s case?

The introductions in the Viacom Complaint and Answer attempt to put the issues raised in the case into a global context, and take on less of a still legalese character. The McGraw-Hill briefs are more straight-forward and factual, and incorporate their theories later on in the complaint. Does this have an effect on the reader’s perception of the issues? Does making the case sound vitally important affect the decisionmaker’s perception of who has the stronger case?

Creative Commons/Flickr photo lawsuit

Posted in The Law on September 26th, 2007

Another student posted on the course blog: “A minor, represented in a suit filed by her mother in a Texas state court, is seeking damages against Creative Commons for what the plaintiff alleges is an unauthorized use of her image in a photograph downloaded from the Flickr website and used in a Virgin Mobile print advertisement in Australia. Flickr allows private individuals to upload photographs onto the website, generally to facilitate ease of sharing. The question at issue in this new lawsuit is whether or not Creative Commons had the authority to allow for the use of the pictures by Virgin Mobile. The cell phone company acquired the image from Flickr using the Creative Commons attribution-only licensing scheme. The license allows for the free use of the photographs by third parties without the permission of the subject of the photo or the photographer as long as the reproduction of the photo contains a credit to the link from which the photograph was originally taken.”

Links: Internet Cases Blurb and the photo and discussion on Flickr.

This brings up an interesting aspect of the law and the internet – what constitutes informed consent? Back in the days when you had to sign your name on a form, there was something more important-seeming about your action, and although I am sure that few sat down to read car insurance agreements, you can now sign your rights over without ever seeing the form. (as in when there is a hyperlink you don’t bother to click) In most cases, these are still “contracts of adhesion” and their terms not iron clad if examined by a court. Still, there are many contexts in which this can be used to a party’s advantage; for example, many users may assume the agreement is fully enforceable and never sue.

To go on a bit of a substantive tangent, this is a key part of malware fights. When companies distributing ad/spyware wanted to facially comply with regulations, they will have a fine-print disclosure of the installation of additional software that generates pop-up ads. They can then claim, as Zango did, that the users consented to the presence of that software on their computers in exchange for the free screensaver, Zwinky doll, or game they had willingly downloaded.

The problem was, the companies were doing everything they could to have the user consent without realizing it. They have the agreement in a separate document that you have to click to open, bury it under expected and unremarkable legalese terms, and sugar-coat it by using euphemistic terms to describe their great “bonus” toolbar. A key part of the Zango settlement with the FTC(warning: PDF) was that it get “express consent” to “clear and prominent” terms. (according to , they are falling short of compliance)

Just when is consent actually consent? When you have to click a checkbox agreeing to unseen terms every time you join a new site, it becomes almost an unconscious act.

Obviously the Flickr agreement is not the same thing. They are not including the license for selfish or devious purposes, and those who have been hanging around Benkler’s class and the Berkman center have probably gotten the impression there are great benefit to having more things in the Creative Commons. To boot, CC is not the default; I just checked my own account, and fortunately have “All Rights Reserved” on the photographs that my professional photographer friends gifted me for my wedding.

But how much did ChewyWong really think about what she was agreeing to? Did she contemplate being mocked on bus stops in Australia? Have we made it too easy to give away our rights? In a world where the casual style of homemade Flickr photos is a hip advertising style, this question becomes more and more relevant.

Interestingly, I forwarded a few friends the website of a renaissance faire I was planning to attend. On the top of the page were a pair of eyes peeking out from a ninja wrap. A response from my friend, who is president of a database programming company: “Wow, that is my picture. And I don’t even know who these people are.” Perhaps it had been taken from a similarly CC endorsed photo site, perhaps it did not. It doesn’t really matter – it never occurred to him to sue. We’re not all Fields, waiting for the opportunity to seize on our rights and make a profit – in the real world people often let these things go. If Virgin does get sued, regardless of the outcome, perhaps their main mistake was not the picture, but the caption.

Atheists Charge Christian Group with DMCA Abuse

Posted in cyberlaw, Intellectual Property, The Law on September 26th, 2007

Creationist vs. Atheist YouTube War Marks New Breed of Copyright Claim.
According to Wired, the DMCA is now being used as a tool in religious wars. The Rational Response Squad had posted several critical videos that used Creation Science Evangelism ministry owned content. The latter reported to YouTube that they violated copyright law; YouTube took down the videos and even suspended the RRS’s account. According to an EEF attorney, the material was “clearly fair use” and CSE’s claim was “clearly bogus.”

It is also likely that the group disclaimed copyright in the materials; although they have now edited their site to state that copyright was placed on all materials in 2005. Those who have taken copyright can help me out here, but I believe you cannot rescind something from the public domain; assuming the screen shot is genuine, they are attempting a slight of hand by back-dating it.

This brings up interesting issues that we discussed in the first week about the wisdom of DMCA procedures that might lead to a “chilling effect.” Here, the concern is deepened – could the quick take down response that the safe harbor provisions incentivise be subject to more than just the haste and zealousness of the entertainment industry, but to targeted misuse?

Wired’s take:

“As more people catch on to how useful YouTube can be for delivering political, religious and cultural messages, DMCA claims are likely to increase. With news cycles moving at light-speed, an illegal copyright claim might well suppress unwanted news long enough to distort coverage. And if previous incidents are any indication, the issues involved could get much weightier, especially in an election year.”

Here, one could place more responsibilityon YouTube for failure to investigate before the takedown. Instead of a list of hundreds from a major content owner, you have at most a few dozen videos in the report. Of course, those videos are still aggregated with the mass of requests from other sources. You also run the risk of running too far the other way – giving a wide berth to major companies, and unequal protection to smaller copyright owners.

Once again, we are dealing with a legally-savvy recipient of a takedown notice; there may be many such takedowns that we are not hearing about.

The videos, and the atheists’ accounts, have been reinstated. The RRS is planning legal action. Such suits are not unprecedented: in 2004 Diebold falsely claimed copyright over leaked internal emails, and attempted to get them removed from the internet. Like our author friend Mr. Field, they ended up paying damages and penalties for their bogus copyright claims.

With cases such as these, perhaps there is a counter to the chilling effect of widespread DMCA claims. If copyright abuse can be charged independently in response to a takedown notice, instead of solely as sanctions on a plaintiff, it will give attorneys another reason to pause before sending cease and desist letters.

Copyright Clash at the Coop

Posted in The Law on September 25th, 2007

Posted by student to course blog: “In a bit of copyright news close to home, the Cambridge police were called last week to quell the purportedly illegal activities of several undergraduates.  What were those crazy kids doing?  Not drinking, not disturbing the peace, not engaging in any activity remotely evocative of “Animal House” — they were … copying down information about textbooks at the Coop.

Last year, two Harvard undergrads started a website to help students find their course books at the lowest price – and to donate money to charity at the same time.  The site, called, allows students to compare prices for those books at the Harvard Coop and several online retailers.  The group ran into trouble from the start with the Coop, which was none too happy about students writing down the ISBNs of course books on the shelves and then walking out without purchasing.  Last week, the Coop tried to eject two staff members from the store floor, where they were copying down ISBN information.  When the students refused to leave, the Coop staff called the police.  The cops came and went without making any arrests, and the students continued to write down ISBNs for another hour and a half. 

In an attempt to justify the store managers’ attempts to eject note-takers, Coop President Jerry P. Murphy claimed that the Coop considers the ISBNs of its textbooks to be the Coop’s intellectual property.  Alas, the law is not on his side – while an edited collection of information may be copyrighted in its particular arranged format, the facts themselves are not copyrightable.  See Feist v. Rural, 499 U.S. 340 (1991).  And as Jonathan Zittrain noted, the reading lists may be the intellectual property of the professors compiling the lists – but not the Coop stocking the books.  The Coop can assert real-property rights to exclude students from its premises (as long as they’re not doing it on the basis of, e.g., race or sex), but the intellectual property claim won’t get them far.”

There is another article in today’s Crimson, with a Copyright 101 guide on the issue by HLS folks, including our own John Palfrey. It also includes reference to policy issues – namely the purpose of copyright. It doesn’t promote the arts and sciences to allow bookstore presidents to keep Book names and ISBNs secret, especially when this is information the professors should be releasing to the students directly. I’m glad the law school Coop doesn’t have such a policy. At different points, I have roamed there with a notebook and a pen, or my camera phone, getting information for price comparison. I ended up buying most of my books there anyway, since the convenience of having them right away trumped the savings. But the Law School Coop does indeed offer additional services to make them attractive. I may be able to save $2 buying a study guide on Amazon, but the staff there is always able to offer helpful advice on which are best, especially contextually. That kind of competition is much more in the best interests of the community. Alison brought up a very good point – this does relate to the idea of sending cease and desist letters as a means of scaring people off regardless of the law. These students are at Harvard, and are less likely to be scared off than less-savvy shoppers in the face of similar claims. They have the resources of the law school at their disposal – and they are aware of this. Was the president’s real mistake making false claims to the wrong people? Could it be a good thing that such claims are being made here first? Now anyone with a Google account will be able to quickly access information about whether booksellers can claim IP rights to block customers from copying basic identifying information.

Extraneous Information in Legal Briefs

Posted in Practical Lawyering in Cyberspace on September 22nd, 2007

“In its memo in support of motion for summary judgment, Google continuously stresses the bad faith inherent in Field’s actions, though it is not mentioned by the judge in his decision, nor is it an element of any defense Google raises. Strategically, who is this language aimed at and what was the purpose of its inclusion in the motion?”

This seems related to the analogy question Proshanto asks – what about elements of the brief that do not go directly to legal standards and the question presented, but will otherwise influence a decision maker?

Juries as well as judges are not objective machines; we cannot input the facts and legal standards and extract a decision clear of subconscious influence. Add to this the fact that law is not a science; in many cases there will be room within the doctrines to justify either decision. For example, the same SCOTUS judge may come down on different sides of the same legal issue depending on the ideological situation of the case.

The quote from Field’s self-proclaimed “talented and creative” writings might not be directly legally relevant, but it is not superfluous. The same goes for the mental image of a spy at one’s door. If it convinces the judge that one party is a shady character, that predisposition (or even prejudice?) is going to influence where she falls within the range of legally justafiable conclusions. Which means that, like it or not, fancy prose and creativity may indeed be part of a good lawyers arsenal. And just when I got accustomed to bland legalese, too.

New Courseload

Posted in cyberlaw on September 12th, 2007

So I am beginning my first official foray into Cyberlaw and IP, outside of the work context.  I have dealt with cyber issues fighting malware at the FTC, analyzing copyright law for bloggers at the Berkman Center, and wresting with Safe Harbor provisions during my temporary stint as‘s in-house counsel.  I have also done trademark and patent law at my firm last summer.  But never before have I had a general background or any academic training – it was always learn as you go.

I’m hoping this will present much blogging fodder, particularly as I am finally free of confidentiality issues on the matter.  I will also be attempting to understand the relationship between the two.  As I learned about them, and dearly missed my passion for all things internet while reading valve schematics, I began to get the impression that they were distinct entities.  As the members of my “Practical Lawyering for Cyberspace” seminar rattled off the IP courses they were taking, I realized that the connection between them is something I am just beginning to understand.

I suspect that this and my introductory intellectual property course will make up the bulk of my entries this term.  My interest is fully piqued, and one of my grades dependent on online participation, so we might see a spike in volume as well.

Copyright Bullies?

Posted in cyberlaw, Intellectual Property, Practical Lawyering in Cyberspace, The Internet, The Law on September 12th, 2007

The first week in our Lawyering in Cyberspace Course dealt with Cease and Desist letters, including those sent by copyright holders to individuals.

In one instance, the NFL had YouTube remove a video that a law professor had posted, mostly consisting of their overreaching copyright notice. She purposefully included some footage of the game itself, and entitled the video “SuperBowl Highlights.” This layered the irony of the act; her point about the wild claims of copyrights within the SuperBowl would be made not just by its repetition, but by the act of removing that repetition under a copyright assertion.

My first reaction to the conflict was visceral, and sprung not by the removal but by the claims I saw in that video made by the NFL:

This telecast is copyrighted by the NFL for the private use of our audience. Any other use of this telecast or of any pictures, descriptions, or accounts of the game without the NFL’s consent, is prohibited.

What? Accounts? granted I have far to go in my understanding of copyright, but I believe you can only copyright expression, not facts. The NFL’s purported prohibition from talking about what happened in the game is therefore claiming more rights than they have. This reminds me of those little liability waivers in contracts of adhesion which parties have no hope of upholding in court, but nonetheless serve to discourage people from suing.

Furthermore, although fair use is a fuzzy doctrine, it looked pretty clear to me that this was well within the bounds of it. The purpose and character is non-commercial, and indeed political, the very essence of what is being protected. The NFL would seem to have no real property interest in the copyright notification itself (who is going to buy that?). The clip of the game itself is small and uninteresting, with no market in and of itself.

The initial takedown, prompted by NFL’s assertion of rights under the DCMA and complied with to keep YouTube within the Safe Harbor, appears to have been the result of mere carelessness. An assertion the NFL sloppily made of similarly-titled videos and/or those whose screen shot showed the game.

I’ll pause here, since this itself is problematic. Not all YouTube users are savvy law professors, who know they are in the right. Many would have no clue how to respond appropriately to get the video reinstated, a complicated procedure that requires specific claims and statements, and consent to jurisdiction they may fear making. The result will therefore be that many fair use videos will be removed, and free speech wrongfully silenced. Of course, the administrative hurdles to finding, watching, and evaluating every video present no clear alternative.

After the reinstatement, the NFL re-asserts its copyright, causing a second takedown. This is more focused, and individual. It is therefore more offensive, since they had a clearer indication that there were legitimate fair use claims here, perhaps even to the point of it being obvious there was no copyright violation. Since there was no harm to Viacom in showing the clip, as in taking away from their ownership in the game, why did they do it? At that point it becomes suspicious – they may be attacking her for the message itself.

Taboo: Nature vs. Nurture, Part 2.

Posted in In the news, Taboo Subjects on May 6th, 2007

Earlier, I discussed incest as a moral value that stems from instinct. One might think that it springs, as many of our moral values do, from a societal and intellectual analysis of the risks involved, namely in the form of genetic disease and birth defects. Pinker demonstrated the difference by discussing the various cultures that have shared this disgust , which predates our knowledge of genetics. It has also been seen in the animal kingdom, which could not spring from scientific knowledge. Yet could it spring from a mere observation of the harms of incest, spread from one generation to the next?

And what about the isolated Japanese cultures who seem to have little taboo around this, even in the fact of laws prohibiting it?

He also demonstrated its innateness by posing a hypothetical where there is no harm. Our disgust still remains. Yet could it be that once we tie the act to disgust, removing the cause is insufficient to eradicate what we have set in our minds? Besides, when it comes to cousins (admittedly less of an instictive taboo) there is not that significant of an increased risk.

A study conducted in the United States found that 1.69 percent of the offspring of marriages between cousins showed genetic-related disorders, compared to a rate of 1.02 percent for offspring of ordinary marriages.

Statistically significant? Sure. But to the average person, these numbers would not indicate a compelling reason for such a strong taboo. And yet we have such a taboo against relationships with cousins, a taboo that has lead to legislation here in the US as well.

I think I have discovered somewhat compelling evidence that it derives strongly from an instinctual component. We have no taboo against exposing children to genetic risks. I’ll demonstrate that with an excerpt from a listserv I belong to:

Remember the case of David Vetter, a/k/a the Boy in a
Bubble? His two fucking worthless idiot parents, David Joseph Vetter
Jr. and Carol Ann Vetter, were desperate to have a boy to “carry on
the family name.” Never mind the fact that a minor affliction called
Severe Combined Immune Deficiency (SCID) ran in the family and that
each boy therefore had a 50% chance of being born without an immune
system. Never mind the fact that they already had a daughter and
already had one boy born sans immune system who died. (What was that
boy’s name? David Joseph Vedder III. Big shock there. Utterly barf-
inducing. Talk about selfish!)

Because they were devout Catholics, they believed it was their God-
ordained duty to shit out a boy named David III and “carry on the
family name.” Any sane person would have opted for a vasectomy and
an adoption to do that, but noooooo. Ancient fairy tales perpetuated
by impotent Italian aristocratic men in dresses once again won out
over common sense. But Wait, There’s More!

Their doctor, also a Catholic, in fact a Holy Cross brother, had a
brilliant idea. If their son was born with SCID, he would be
isolated in a sterile environment until a cure (which, of course, was
“right around the corner”) could be found. No thought was apparently
given to how a complete lack of human contact would affect their
little trophy’s psychological development, no no no, they had God on
their side!

At the age of three, the kid was asking his (!) personal psychologist
why he was angry all the time. At seven, he was smearing his own
shit all over the inside of the enclosure. When he finally became
unmanageable, they attempted a bone marrow transplant using marrow
from his sister, but she had the Epstein-Barr virus. The kid died a
horrible death two weeks later, his body riddled with tumors.

Just as you are thinking that the presence of such a rant on a listserv may be indication that there is a taboo for such actions, consider that this group exists to circumvent taboos; as a safe haven for things you cannot say elsewhere. This is why I had to get this information off of an e-mail. There is not much presence for derisions of this sort on the internet, let alone in our society. We do not have a general taboo against getting pregnant when you have an increased risk of disease. Indeed – we have a whole industry based around it!

Many types of fertility treatments result in disproportionate amounts of birth defects. When implanting extra embryos to increase the odds of conception, we know we are taking the risk of creating twins, triplets, or far worse. These multiple births represent extreme risk to the children, even to the point where doctors often recommend aborting one to save the other/s. Yet many parents refuse. A minority criticize that choice, but there is not the widespread condemnation of risking those lives that one would expect to see. If you cause risk to a fetus by punching a pregnant woman or committing incest, there is a taboo. But an act that creates a much greater risk to the fetus is essentially given a pass!

The first week of class, fertility treatments were mentioned as something that has lost its taboo or its moralization. The original aversion to artificial creation of life, as against “god’s design” or in violation of Catholic doctrine against destruction of sperm/eggs has indeed faded. But where is the new taboo – the one that springs not from abstract religious values, but from the actual harm being caused?

This is not the only context in which people playing god while risking harm to their children gets a free pass. Situations as above, when people have diseased children but create more, go on all the time without the slightest peep from society. Fertility treatments are given to women with multiple miscarriages, creating an increased risk that whatever was causing them to miscarry will damage the child (often the body knows what it is doing). But we blindly and thoughtlessly defend such actions, then coo with sympathy at the poor parents who care for a disabled or sick child.

But this is aside from my point. I will say “enough is enough!” and move on. More relevantly, the lack of taboo attached to this relatively greater risk of harm disabuses us of the notion that the taboo against incest springs only from the risk. There is something more to it. Perhaps it is that the act is more direct, less subtle. That may make it easier for us to condemn. But it also may be that there is an instinctive drive there, something that is more compelling than a rational assessment of the risks. Some inborn aversion to it combines with the knowledge we have (be it “this person is my sister” or “this risks birth defects” to create a moralization. As time goes on, perhaps greater knowledge will attach to other instincts, like the drive to protect a helpless child. Perhaps then we will see a new moralization to overcome the weakness of will we seem to be suffering.

Taboo: Nature vs. Nurture, Part 1.

Posted in Taboo Subjects on May 6th, 2007

One of the first subjects tackled in our taboo subjects class was whether there is such a thing as a ‘moral instinct’.  Are all of the taboos that we have the result of purely external societal constructs?  Or are some things hard-wired onto us?

This was a point of disagreement between the professors.  Dersh pointed out that those things we may point to as innate, such as the right of all not to be enslaved, were not always accepted. If these were instinctive, there  would have always been such a taboo. It has been too short a time for a biological evolution to alter any innate moral sense.

Pinker pointed out some things that have been constant – the taboo against incest, even between willing siblings.  Such instinct probably evolved to protect us from the dangers of inbreeding, since the odds of genetic diseases is higher when the parents are related.  Likewise, we have an instinct of disgust surrounding food, which probably began to keep us from eating things that may have been tainted or otherwise unsafe.  This emotion of disgust is closely tied with moralization.  Ergo, the idea of incest disgusts us, and many have tied moral values to food proscriptions, such as ones against pork.

My own working theory is that there was not really much disagreement between the two.  Rather, it hinges on what exactly is instinctive, and what we are defining as morality. There is some instinctive sense against killing another unnecessarily, just as there is against incest.  But the instincts we have cannot really become moral until they are placed into the setting of our surroundings.  Ergo, morals that derive from instincts can change over time, not just because our setting changes, but largely because our knowledge does.
Hundreds of years ago there was no general moral sense that slavery was wrong, but many would have been aghast at treating a white person this way.  But that belief was based on an assumption that there were inherent differences between the races; that blacks were somehow inferior or somehow sub-human and thus it was not wrong to mistreat them.  As we as a society learned this was simply not true, this knowledge combined with our instincts to create a moral sense.

This really leads to them both being wrong.  Our morality is not entirely cerebral and derived from experiences, nor is it something that springs whole cloth from our genetic cloth.

The belief that blacks were inferior often came out in comparison to animals. They were seen as ‘savage’ and uncivilized.  If one has any doubt that this pseudo-knowledge could justify enslavement, one only need to look to how we currently treat those we regard as savages – animals.  Our belief that they are disposable and can be killed or tortured for pleasure – be it food, clothing, entertainment or cosmetics – stems from our assumptions about their worth.  If we come to a point where we recognize they are sentient being who can suffer, and who are self aware, uses for our pleasure will seem nearly as inhumane as mistreatment of other races.  Both professors acknowledged this when they stated that future generations will probably see this as this era’s barbarism.

Yes, there are differences.  Animals do have different cognitive abilities.  We will probably never come to the point which we have with blacks, where we admit full equality.  That just changes the degree of the comparison, not its relevance.  It only means that the abuses we consider barbaric will be relevant to the comparable abilities of animals, and will be related to just how frivolous our needs were.


Posted in Taboo Subjects, The Law on April 25th, 2007

As I write this, I can just hear my grade falling. In an attempt to (over)compensate for the professorial tendency to give higher marks to those who agree with them, Dersh admits that disagreeing with him might garner higher marks. However, try as I might, I still find his arguments largely compelling

Torture – does it work?
This is a great avoidance doctrine. If those claiming it does not were judges, they would be citing political questions and non-justiciability. If torture did not work, we would have no need to grapple with the tough questions we now face. Instead, like the question of pushing a fat man on train tracks to stop it from hitting people, the matter of torture would be relegated to the halls of academia – more specifically, the Philosophy Hall.

Instead, we do have to grapple with these issues. Torture sometimes works. if it did not, it would not be so widely (but secretly practiced) It is not a matter, as some protest, of the reliability of the information given. The 5th Amendment’s prohibitions are well placed, since a confession would be much less reliable if physically, or even psychologically, coerced. Instead we are dealing with the matter of prospective information, information that can be verified if before the person in question is released.

Confining ourselves to the category of torture that deals with information about impending acts may eliminate some real-life instances (such as sadistic guards, confessions and show trials, and Posner points out) but since those are easy questions, I will put them aside for now. In this restricted case, there is not incentive on the part of the torturer to obtain false information. The practice will continue until the information is verified. False information will still be obtained, but in that case it will be revealed by someone who is accepting the future repercussions, and is making that sacrifice for his cause. Misleading information is part of their strategy, and will have to be part of the calculus. But it is not a constant, and so we are dealing with the fact that sometimes, torture works.

Is Torture Ever Right?

Again I will cite Posner. No, torture is never right. However, sometimes we are faced with the choice of two wrongs. The wrong of causing a human being pain against the wrong his allies will cause to innocents, perhaps many. It is a terrible balancing test to have to do, and I can therefore understand the drive to find avoidance doctrines.

Just how to balance these wrongs is a widely disputed question. I do not think there is a right answer. Some say that to sacrifice the kidnapped child, the anthrax-poisoned city might be worthwhile. That what we give up when we lower ourselves to torture is too great a cost, no matter what is on the other side. There is validity in this argument, but few espouse it.

More common is a wavering in the so-called “ticking bomb” scenario, when the torture of one will save millions. Once we accept this as an example of one time torture may be allowable, we change the calculus. The question is not if, but when. We enter into a realm of myriad scenarios, countless combinations of factors on either side of the scale. Is it right when thousands are at risk? Hundreds? Just one innocent? Does it matter if that person at risk is a high school dropout or a Pulitzer Prise winning scientist? A seven year old with her whole life ahead of her, or a 90 year old man who will die within months? Does it matter if that person is an orphaned infant, with no self awareness, or a brain-dead vegetable, or has an IQ of an ape? If the last is worth torturing for – is an ape?

And how many must we torture? Ten terrorists to save one innocent? Does it matter if that torture is psychological? Sleep deprivation? If all we do is administer truth serum? Water boarding? What if that torture risks their life?

And what if we are not sure there is a bomb? We think the kidnapped child in question is dead, but we are not sure. We think he is lying about having anthrax. What calculus can justify torture then?

I do hate posting more questions than answers. But as you can see, all three of these categories can combine in a thousand ways, and each calculus is different. I am inclined to agree that in the most extraordinary of cases, in which the lives to be saved are numerous and the method of torture non-lethal, torture is the right thing to do. I am not quite sure where I draw my line, but it is somewhere before torturing ten people who may be innocent on the slight chance one may be harmed.

How Should We Do It?

As Dersh points out, this question can be unrelated to the last. It is possible to take th absolutist position advocating an all-out ban on torture, and still advocate for legal mechanisms. This is possible because torture is going on, whether legal or not. If it is possible to force it through review and make sure that an objective person is doing the balancing above, that is an improvement on the current situation in which the choice is left to an individual agent with no oversight.

While an articulable argument can be made on the other side – that it is better to keep it in secret, that legitimating it is too high a cost to control it – I do not find these arguments convincing. Nor are they novel – they are the reason for the current drug war, when legalization would decrease organized crime and the hazards of drug use. Our society has come out the other side, too, at least on the surface – better to legalize abortions than to subject women to the hazards of back-alley ones, since they will get them anyway. However, as I have never heard someone who is actually opposed to abortion make that argument, it has little force here. It appears that our country prefers the hazards of illegality to the governmental imprimatur of legality.  In this sense, I will remain with the minority, as I do on the drug issue.  The costs we are paying are too great for the slight benefit of clean hands. I think we exaggerate how much approval of a practice legitimizes it (see SCOTUS’s approval of Japanese internment in Koramatsu, which did not translate to or affect popular opinion)

One Caveat

I’m not so sure the torture warrant would work.  The scheme assumes that just because there is a legal channel, people with take it.  The scheme, however, is pitted against a longstanding tradition of practice which it needs to alter. Dersh seems to address this point when he argues that the necessity defense would be unavailable, and that absolute  liability would attach when someone could have obtained a warrant but didn’t.  But in a setting where there is an all-out ban and people are not prosecuted, this is a leap of logic.  Would prosecutions and reportings of these instances increase just because a warrant mechanism is put into place?  Against the reality of military culture, I find this doubtful.

He also cites the fact that the higher-ups give a ‘wink and a nod’ to those below them when telling them not to torture.  I think in this lies the spark of possibility that warrants will change things.  Higher ups might exist in a culture that wants to reduce liability.  It is possible that when a mechanism is available, the calculus of our leaders will change, and they will seek the protection and lack of liability that most do. This would depend either on them considering the costs of obtaining a warrant low, or on the possibility of discovery of their covert approval. In the wake of Abu Ghraib, this is possible.  But I don’t think it is probable.

And thus, the warrants work only if used.  If, as with gun control, this means only law-abiding citizens will now be subject to judicial oversight, we have a problem.  They will then have more of a likelihood of torturing; those that would have  aided by the prohibition merely because it was the law will now add to the amount of torture going on.  If the amount of covert torture continues under the radar, this means that the effect of the warrant procedure will be more torture.

Which gets us back to the question of whether it is ever justified.  Assuming that the law-abiding, warrant-approved torture that will be added to the mix saves lives, the torture warrants may be an improvement. It doesn’t quite work the way Dersh wants and relies, as he does not want to, in the justification of some torture (indeed the assumption it can be a good thing).

So we have two possibilities for improvement. Either the judges will act responsibly, torture is sometimes a good thing to do, and there will be  an overall benefit.  Or, I am underestimating military culture and the warrants will decrease the amount of unjustified torture.  Both possibilities turn on tough moral issues and moreover they turn on basic human nature, and the behavior of two sets of people.  In this sense, they are unanswerable.  I cannot get into the mind of a military commander or that of a judge.  They are not uniform actors, and the effect will depend on which leaders and judges end up with these questions at their feet.  These are unknowable, and so, therefore, are the effects of a torture warrant.