The Volokh Conspiracy

Back in 2007, I wrote a Volokh post, Should the LSAT Have A "Logic Games" Section?. arguing that the Law School Admissions Test (LSAT) should drop the logic games section because it tested abilities that didn't relate to work as a lawyer:

I confess I don't understand why the LSAT has a "games" section (aka "analytical reasoning"). This section tests an ability to understand relationships among a handful of variables and to see the different ways that different combinations of those variables can fit different criteria. The skill set seems to be keeping a lot of variables in mind and working with how a change in the boundaries of a problem changes how the different pieces can relate to each other. That is an important skill set in many professions, to be sure; it's something that I did all the time when I was in engineering graduate school. But I wonder, how important is that skill to either the study or the practice of law? What kinds of legal tasks rely heavily on that skill?

The Law School Admission Council's report on the history of different LSAT questions explains that the purpose of these questions is "to understand the structure of a relationship," and claims that they "represent the kind of detailed analyses necessary in solving legal problems."(p.8) But I don't see why. (The report cites a 1993 study, but I couldn't find it online.) It's not clear to me that this particular kind of reasoning is directly relevant to either the study or practice of law.

Some Volokh Conspiracy posts change the world immediately, while others simmer for a while. This one took sixteen years, apparently, as the people who administer the LSAT just announced the following, via Reuters:

The Law School Admission Test will ditch the so-called "logic games" section of the exam in 2024, according to the organization that creates the test, marking a major change to the exam's content.

The change means that perplexing questions such as who gets which meal at a dinner party if Mary has a fish allergy, Devin doesn't eat gluten and Jamal prefers organic will no longer be part of the test.

The Law School Admission Council (LSAC), which develops and administers the test, sent an email on Wednesday to U.S. law schools, which was reviewed by Reuters, notifying them of the change.

Seriously, glad to see this.  I don't think the games section should have ever been part of the test, and it ended up a silly barrier to entry to many that only distorted the admissions process.  Good riddance.

Previously, I blogged the abstract, introduction, Part I, and Part II of my new article, Taxing Nudity: Discriminatory Taxes, Secondary Effects, and Tiers of Scrutiny, which has just been published in the Journal of Free Speech Law. It's based on my work with the Georgia Association of Club Executives v. Riley case, where we challenged a Georgia tax on adult entertainment establishments on First Amendment/free speech grounds.

In this final post, I'll give you Part III, "Taxation and the Necessity Inquiries", which explains why the tax should fail under strict scrutiny and is vulnerable even under intermediate scrutiny. And I'll end with the Conclusion. (The article obviously has a lot of footnotes — go to the article itself if you want to see those.)

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III. Taxation and the Necessity Inquiries

A. Taxes Fail Strict Scrutiny

Once we determine that a tax is content-based and requires strict scrutiny, it must necessarily fail. Strict scrutiny requires that the government choose the least restrictive (i.e., least content-discriminatory) means of pursuing its goal. But the government can always pursue its goal—providing services to victims of sex crimes, or similar—by providing the same amount of money from general revenues. As the Supreme Court wrote in Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue:

The main interest asserted by Minnesota in this case is the raising of revenue. Of course that interest is critical to any government. Standing alone, however, it cannot justify the special treatment of the press, for an alternative means of achieving the same interest without raising concerns under the First Amendment is clearly available: the State could raise the revenue by taxing businesses generally, avoiding the censorial threat implicit in a tax that singles out the press.

"The same is true of a tax that differentiates between members of the press," and the same is true of a tax that differentiates between erotic and non-erotic messages, or different types of content more generally.

Now perhaps I'm being too absolutist here—perhaps we shouldn't take too literally the idea that we need to find the absolutely least discriminatory alternative; perhaps we should care at least a little bit whether those less discriminatory alternatives serve our purposes somewhat less well. Maybe we need to do somewhat more balancing—like intermediate scrutiny, but drawing the line in a more speech-protective way, for instance by requiring the government to tolerate a greater harm to its asserted interest when strict scrutiny applies than when intermediate scrutiny applies.

That's not how the strict scrutiny cases state the test, so I'm inclined to say my absolutism is warranted here. Still, if one wants to be less absolutist, we'll want to look closely at a variety of asserted government interests. But I'll save that analysis for the next subsection, in which I argue that the tax is vulnerable even under intermediate scrutiny (which implies it would be even more vulnerable under strict scrutiny).

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This episode of the Cyberlaw Podcast delves into a False Claims Act lawsuit against Penn State University by a former CIO to one of its research units. The lawsuit alleges that Penn State faked security documents in filings with the Defense Department. Because it's a so-called qui tam case, Tyler Evans explains, the plaintiff could recover a portion of any funds repaid by Penn State. Which is preferable to the alternative: If the employee was complicit in a scheme to mislead DoD, the False Claims Act isn't limited to civil cases like this one; the Justice Department can pursue criminal sanctions too – although Tyler notes that, so far, Justice has been slow to take that step.

In other news, Jeffery Atik and I try to make sense of a New York Times story about Chinese bitcoin miners setting up shop near a Microsoft data center and a DoD base. The reporter seems sure that the Chinese miners are doing something suspicious, but it's never clear exactly what the problem is.

California Governor Gavin Newsom (D) is widely believed to be positioning himself for a Presidential run, maybe as early as next year. In that effort, he's been able to milk the Sacramento Effect, in which California adopts legislation that more or less requires the country to follow its lead. One such law is the DELETE (Data Elimination and Limiting Extensive Tracking and Exchange) Act, which, Jim Dempsey reports, would require all data brokers to delete the personal data of anyone who makes a request to a centralized California agency. This will be bad news for most data brokers, and good news for the biggest digital ad companies like Google and Amazon, since those companies acquire data directly from their customers and not through purchase.

Another California law that could have similar national impact bans social media from "aiding or abetting" child abuse. This framing is borrowed from FOSTA (Allow States and Victims to Fight Online Sex Trafficking Act)/SESTA (Stop Enabling Sex Traffickers Act), a federal law that prohibited aiding and abetting sex trafficking and led to the demise of sex classified ads and the publications they supported around the country.

I cover the overdetermined collapse of EPA's effort to impose cybersecurity regulation on the nation's water systems. I predict we won't see an improvement in water system cybersecurity without new legislation.

Justin lays out how badly the Senate is fracturing over regulation of AI. Jeffery and I puzzle over the Commerce Department's decision to allow South Korean DRAM makers to keep using U.S. technology in their Chinese foundries.

Jim lays out the unedifying history of Congressional and administration efforts to bring a hammer down on TikTok while Jeffery evaluates the prospects for Utah's lawsuit against TikTok based on a claim that the  app has a harmful impact on children.

Finally, in what looks like good news about AI transparency, Jeffery covers Anthropic's research showing that – sometimes – it's possible to identify the features that an AI model is relying upon, showing how the model weights features like legal talk or reliance on spreadsheet data. It's a long way from there to full explanations of how the model makes its decisions, but Anthropic thinks we've moved from needing more science to needing more engineering. (Credit as always to Bing Image Creator for the graphics.)

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Yesterday, the Supreme Court of Colorado handed down the first state supreme court case on the law of reverse keyword searches for Google terms: People v. Seymour.  Here's the issue: If the government has reason to think that someone entered in a particular Google search related to a crime, can it get a warrant to compel Google to hand over IP addresses or account that entered that search?  If so, how broad can the search be?  And is a warrant needed at all?

Seymour involves an arson at a particular address.  Having no leads about who set the arson, investigators figured that whoever did the crime probably googled the address of the arson in the weeks beforehand. (The idea being, I assume, that between getting directions and getting Google images pictures of what it and the surrounding area looks like, it's a natural way to do recon of the place as part of the plan to commit the arson.). Investigators obtained a warrant covering the 15 days leading up to the arson, and Google responded that 8 IP addresses had googled that address.  Five of the eight addresses were local, and investigators ruled out two of them. They then obtained another warrant to get records of the other three.  One of the three was the defendant, Seymour.

Among the questions raised: Did Seymour have Fourth Amendment rights in Google's records of his search terms?  Someone at his computer, presumably him, had googled the address; Google had the search term that was sent to it. Did informing the government that the term had been searched from his IP address violate his Fourth Amendment rights?

The Colorado Supreme Court answered that question in a very novel way.  First, it held that although it was likely not a Fourth Amendment "search" to collect that information — the user is sending the data to Google, after all, so Google receiving and storing it is covered by the third-party doctrine —  it is a search under the broader Colorado Constitution. I don't have any particular view of the Colorado Constitution, so that part of the opinion is isn't all that important.

But then the court did something I have not seen before: It ruled that copying the data held by Google "seized" it under the Fourth Amendment even though accessing it was not a search. The court did this in two steps.  First, it ruled that a Google user has a possessory interest in search terms held by Google sufficient to receive Fourth Amendment seizure protection:

Under both the Fourth Amendment and the Colorado Constitution, a seizure occurs when the government meaningfully interferes with an individual's possessory interests in property. Hoffman v. People, 780 P.2d 471, 473 (Colo. 1989); accord Jacobsen, 466 U.S. at 113. And several courts have recognized, albeit in different contexts, that individuals can have possessory interests in intangible or digital property. E.g., Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1003 (1984) (holding that, at least for the purposes of the Takings Clause, individuals have property rights in intangible property, such as trade secrets); Integrated Direct Mktg., LLC v. May, 495 S.W.3d 73, 76 (Ark. 2016) (holding that electronic data can be converted if a person impedes on the property rights of the owner). Indeed, Google's licensing agreement makes clear that it does not own its users' content. Instead, users own their Google content, which, according to testimony from a Google policy specialist, includes their search histories.

It next ruled that copying the data was a "seizure" of it:

"One of the main rights attaching to property is the right to exclude others, and one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude." Rakas, 439 U.S. at 143 n.12 (citation omitted). So, while law enforcement can copy digital data without affecting the owner's access to that data, it is the act of copying that meaningfully interferes with the owner's possessory interest because it infringes on one's rights to exclude and to control the dissemination and use of that digital data. See Randolph S. Sergent, A Fourth Amendment Model for Computer Networks and Data Privacy, 81 Va. L. Rev. 1181, 1186 (1995); Orin S. Kerr, Fourth Amendment Seizures of Computer Data, 119 Yale L.J. 700, 710–14 (2010) (discussing that a seizure of digital property occurs when the government copies the data because it is the copying of the digital property rather than control of the physical hardware that preserves it for future evidentiary use and therefore meaningfully interferes with the possessory interest of exclusive control)

I don't have a problem with the second part of that, as you might guess: I have long argued, including in the cited article, that copying Fourth Amendment protected data is a seizure of it.

But the first part of that holding strikes me as incredibly novel and far-reaching, as it gets to a super-important question about when copying is a seizure.  I have always treated the seizure power as coextensive with the search power.  Under that approach, copying data is a seizure only if accessing it is a search.  As I put it in Fourth Amendment Seizures of Computer Data, it's copying of "Fourth Amendment protected data" that is the seizure—not just any copying.

Unless you take that view, it seems to me, you end up silently overturning—or least practically nullifying— Fourth Amendment caselaw on what is a search in the first place.  The problem is that the process of revealing information almost always requires first copying it.   If you say that it's a seizure to copy information, even when revealing it is not a search, then you end up requiring a warrant for act of obtaining the data even though the obtaining doesn't require a warrant. Just the incidental need to copy the unprotected data to obtain the information ends up requiring a warrant. And I don't think that makes sense.

Indeed, if you take that view, you end up having to devise a brand-new set of principles as to when copying data is a seizure.  If you're no longer tied to what data is protected under the search rules, what else is there to trigger enough of a Fourth Amendment interest?

The Colorado Supreme Court doesn't offer much in the way of an answer.  First, it notes that some courts have said you can possess data:

And several courts have recognized, albeit in different contexts, that individuals can have possessory interests in intangible or digital property.

Sure, in the abstract, that's right.  You can have a possessory right in data.  But why would that mean Google search terms are possessed, when you have given up possession by sending the query to Google?  The cases the court cites don't shed any light on that:

E.g., Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1003 (1984) (holding that, at least for the purposes of the Takings Clause, individuals have property rights in intangible property, such as trade secrets); Integrated Direct Mktg., LLC v. May, 495 S.W.3d 73, 76 (Ark. 2016) (holding that electronic data can be converted if a person impedes on the property rights of the owner).

What does that have to do with why you would have a possessory right in records you have handed over to Google?  The last part of the analysis adds:

Indeed, Google's licensing agreement makes clear that it does not own its users' content. Instead, users own their Google content, which, according to testimony from a Google policy specialist, includes their search histories.

I suppose this is an improvement, in that at least it's about Google records specifically, rather than as data in an abstract sense.  But why does the licensing agreement, or terms of service, matter?  As I argue here, terms of service don't effect Fourth Amendment rights.  Why would a licensing agreement magically create a property right in data, such that copying the data is a Fourth Amendment seizure that requires a warrant?

If the Colorado Supreme Court's approach is right, then I would think there is a super-easy way for an Internet company to impose a universal warrant requirement on any effort to get any data from the company.  Just slip this line into the terms of service:

By using this service, you gain a property right in all data held by the company.

By adding this line, would any effort from the government to get any record— even just subscriber identity, or a list of someone else's IP addresses—be a seizure of the data you own because the data would need to be copied in the course of turning it over?  If not, I'm not sure why not.  But that can't be right, it seems to me.

There's a lot more in the Seymour opinion that's of interest, but that seizure holding strikes me as really far-reaching.  I realize that many of our readers are Fourth Amendment maximalists, and will cheer on any ruling that adds new kinds of protection.  But it seems to me that the court's seizure analysis leaves a lot to be desired.

Previously, I blogged the abstract, introduction, and Part I of my new article, Taxing Nudity: Discriminatory Taxes, Secondary Effects, and Tiers of Scrutiny, which has just been published in the Journal of Free Speech Law. It's based on my work with the Georgia Association of Club Executives v. Riley case, where we challenged a Georgia tax on adult entertainment establishments on First Amendment/free speech grounds.

In this post, I'll give you Part II, "Erotic-Expression Taxes and Content Discrimination", which explains why erotic-expression taxes should be subject to strict scrutiny. (The article obviously has a lot of footnotes — go to the article itself if you want to see those.)

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II. Erotic-Expression Taxes and Content Discrimination

A. The Facial Approach to Content Discrimination

Let's talk about erotic-expression taxes first, and let's begin with some blackletter law: government action that is "content-discriminatory" (or, equivalently, "content-based") is subject to strict scrutiny. The Supreme Court has said so recently—in Reed and AAPC—but the principle has been well established for decades.

And how does one determine whether a law is content-based? In Reed, the Supreme Court used a simple approach. That was a case about a municipal sign code that treated political signs differently than other signs. "The Town's Sign Code," the Court wrote, "is content based on its face. . . . The restrictions in the Sign Code that apply to any given sign thus depend entirely on the communicative content of the sign."

The Court used the same simple approach five years later in AAPC: "a law is content-based if a regulation of speech 'on its face' draws distinctions based on the message a speaker conveys. That description applies to a law that singles out specific subject matter for differential treatment."

The law in AAPC discriminated between robocalls on different topics, giving preferential treatment to robocalls made to collect government debt. "A robocall that says, 'Please pay your government debt' is legal. A robocall that says, 'Please donate to our political campaign' is illegal," the Supreme Court wrote. "That is about as content-based as it gets. Because the law favors speech made for collecting government debt over political and other speech, the law is a content-based restriction on speech." In fact, all nine Justices agreed that the law was content-based, though a minority disagreed on whether that should necessarily trigger strict scrutiny.

And this facial approach is rooted in longstanding precedent:

• In Police Department of Chicago v. Mosley, a protester whose picketing opposed racial discrimination in schools challenged a municipal ordinance that prohibited picketing near a school, but provided an exception for labor-related picketing. The ordinance regulated picketing "by classifications formulated in terms of the subject of the picketing," the Supreme Court wrote—focusing on the discrimination present on the face of the enactment—and the "central problem" was that the ordinance "describe[d] permissible picketing in terms of its subject matter."
• In Regan v. Time, Inc., a publisher challenged a federal statute restricting the use of photographs of currency. Under the statute, one couldn't use such photographs at all unless one fell into various exceptions—these included exceptions for educational or newsworthy purposes—and even then there were some restrictions related to the size and color of the photo one could use. The Supreme Court struck down this "purpose requirement" as "constitutionally infirm" because it discriminated based on content: "A determination concerning the newsworthiness or educational value of a photograph cannot help but be based on the content of the photograph and the message it delivers."
• In Arkansas Writers' Project v. Ragland, a publisher challenged a state tax that provided for exemptions for "religious, professional, trade and sports journals" but not for that publisher's own product, a general-interest magazine. The Supreme Court struck down this tax exemption because it was content-discriminatory: "[T]he basis on which Arkansas differentiates between magazines is particularly repugnant to First Amendment principles: a magazine's tax status depends entirely on its content." (This was so even though there was "no evidence of an improper censorial motive.")
• In Simon & Schuster, Inc. v. Members of the New York State Crime Victims Board, a publisher challenged New York's "Son of Sam" law, which required convicted criminals to forfeit any profits from depictions of their crimes. The Supreme Court had little trouble determining that the statute was content-based, even though the legislature had no desire to suppress particular ideas: "The Son of Sam law . . . singles out income derived from expressive activity for a burden the State places on no other income, and it is directed only at works with a specified content."
• In Holder v. Humanitarian Law Project, various individuals and nonprofits challenged a federal statute that prohibited providing "material support or resources" to terrorist organizations. Their argument was that it was unconstitutional to prevent them from giving these organizations support (in the form of lobbying or international-law training) that furthered the organizations' lawful and peaceful goals. The Supreme Court upheld the statute, but in doing so, it rejected the view that the statute merely regulated conduct and was therefore subject to intermediate scrutiny. "Plaintiffs want to speak to [these organizations]," the majority wrote, "and whether they may do so under [the statute] depends on what they say." Therefore, "a more demanding standard" (i.e., "exacting" scrutiny, meaning the same as strict scrutiny) was required.

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[UPDATE: I removed the list of signators, as a few of them have related to me that they intended the correspondence in question to be "private within the NWU Law" community. I'm not sure how an email circulated to hundreds of people by email was expected not to "leak," but I have agreed to their request.]

It's hard to get law professors, who tend to be prima donnas, to sign on to anything, so kudos to to the organizers of this letter.

One of the faculty signators, Prof. Kate Litvak, submitted the letter to the Northwestern University student newspaper, which declined to publish it. Instead, it chose to publish a letter by nine arts and science professors who described themselves as "scholars of the Middle East and North Africa." The letter, which you can google but I won't link to, includes: "To condemn Hamas's attack while ignoring this broader context is to fail to understand how we got where we are today. Decontextualized declarations dismiss Palestinians' struggle for rights and self-determination. They neglect the root causes of today's violence." I guess the good news is that the authors couldn't find many any actual experts on MENA to sign. For example, of the the nine, two are art professors, and one is an English professor.

Anyway I was thinking of reprinting the Northwestern letter here, but the editorial decision of the school newspaper made the decision easy. Streisand effect it! (Note: I've heard that some faculty declined to sign because they thought the letter was insufficiently strongly pro-Israel and anti-Hamas.)

TO: Northwestern Pritzker Law School Community

FROM: Concerned Faculty

RE: Terrorism in Israel

On Saturday, October 7, Hamas terrorists perpetrated the greatest mass murder of Jews since the Holocaust. The massacre took the lives of over 1300 peaceful civilians of many nationalities, including at least 20 Americans. Many children were among the dead. Adjusted for population that would be about 45,000 deaths in the U.S., or fifteen 9/11 attacks in a single day.

Celebrants at a music festival were gunned down without mercy. Homes were invaded by gunmen, who used explosives to ensure there would be no survivors. There was no military purpose to the attack, only the goal of murdering as many Israeli civilians as possible. The terrorists posted videos of their barbarous acts. Over 100 hostages were kidnapped and taken back to Gaza, evidently including two women from Evanston.

These events have affected many students and faculty, of all faiths and backgrounds, in the Northwestern Pritzker community. In Israel, 18 students from our partner Tel Aviv University are among the murdered.

As faculty members dedicated to the rule of law, we choose to make clear that we unequivocally condemn Hamas's wanton acts of terrorism, which have made the establishment of a just peace, recognizing the human rights of every community, all the more difficult to achieve.

Some have claimed that the Hamas atrocities must be blamed on Israel. What Hamas perpetrated was unspeakably evil. It is dehumanizing to blame the murders on the victims. We absolutely reject such acceptance, and near-endorsement, of terrorism.