First, the Court denied cert. in IMS Health v. Ayotte. This case involved data miners’ First Amendment challenge to a New Hampshire law that prohibits the transfer of physicians’ prescribing records for use by pharmaceutical company representatives in their efforts to promote certain drugs to individual doctors. The First Circuit’s thorough decision in the case upheld the law on two distinct grounds: the transfer of the records was conduct rather than speech; and anyway if it was commercial speech the law satisfied the narrow tailoring requirements of the Central Hudson test. There is somewhat mixed case law on the First Amendment status of data mining, but I think the pro-privacy side is winning overall. (For more on this complex topic, see Neil Richards’ great law review article). While it might have been nice if the Supreme Court took the case and delivered the death blow to data miners’ constitutional arguments, that would have been very risky; it is better to leave Judge Selya’s strong opinion — and New Hampshire’s law, imitated by some other states — in place. (EPIC has more information on this one.)

The second decision is close to my co-blogger Tim’s heart, as he has described before. The Supreme Court refused to review the Second Circuit’s opinion finding that Cablevision’s proposed new DVR system does not violate copyright law. (Public Knowledge has more discussion on this one.)

(And by the way, if you share my side interest in election law, today’s announcement that the Court will hear more arguments in the campaign finance case about the Hillary Clinton documentary rather than deciding it — and consider much broader issues about corporate political donations — is also a bombshell. Probably a very bad sign for advocates of campaign finance regulation. Lots of big news other than Ricci today!)

The Obama campaign was more comfortable with new technology than any past presidential candidacy. But there is reason to wonder how that will translate into governance. The transition team’s “Change.gov,” for example, has slicker design than most bureaucracy web sites, but it’s nowhere near as interactive as the campaign’s web site.

One effort to create two-way communication with the incoming administration is a new site called Obama CTO, which uses a Digg-like voting system and discussion board to advance ideas for the as-yet-unnamed CTO. If you are interested in Info/Law issues (and really, why are you on this blog if not?), take a moment to sign in and vote for ideas there.

has sparked outrage by telling faculty, staff and graduate students that a 5-year-old state law designed to prevent state workers from campaigning for candidates on state time or with state resources meant they could not express support for candidates or parties through pins, T-shirts or bumper stickers while on campus. Nor could they attend any political rally or event on campus, the administration said.

The governor’s Office of Executive Inspector General, which investigates ethical violations, has gone one step further, saying state law meant that university students, not just employees, were prohibited from participating in political rallies on campus–an assertion at odds with the university’s interpretation.

On Friday, the state attorney general’s office said the ethics law did not apply to students. The office did not answer whether the law prohibited university employees from wearing political buttons while at work, attending political rallies on campus on non-work time or some of the other specific interpretations made by the university.

Two thoughts.

First, as a matter of academic freedom it seems obvious that both professors and students must be allowed to express views about electoral politics while they are “on duty” — like, say, in class. The law aims to prevent politics from interfering with the smooth and impartial functioning of government activities. But here, that very function is the promotion of open debate. In this special context, the ban actually harms the government’s mission. (It makes me think more generally about Paul Horwitz’s thoughts on special First Amendment treatment for universities.) I recognize that Illinois, of all states, has had a lot of problems with mixing politics and governmental administration. The law may be a wise one in many contexts — but not here.

Second, I am puzzled by the university’s defense of its heavy-handed announcement: “Tom Hardy, a University of Illinois spokesman, said Thursday that the university only wanted to inform its employees of the law and had no intention of enforcing it.” The university cannot have it both ways. Presumably this announcement chills campus political activity. A subsequent wink indicating that you will not enforce the supposed rules does not cure this chill. Perhaps the administration considers the law wrong-headed but wants to warn employees that other enforcers might try to punish them by using it. If so, then the better memo would say something like: there is this law, which some outsiders might interpret as limiting political speech at the university; we remind you of our own policies about civil discourse on campus and expect you to follow them; if anyone outside the university objects to political activity that adheres to our policies please come see us so we can defend you. Wouldn’t that be great?

But political disagreement with the man is no reason to make improper empty threats of copyright infringement suits against his campaign. As Politico reports, there has been a steady drumbeat of such bogus IP claims:

Cease-and-desist letters from musicians have rained down like confetti on Republicans over the years. But nothing compares to the virtual commune full of left-leaning artists who are mad at John McCain right now, though, in most cases, they have no legal basis to stop him from using their songs.

Some of the objections come from those whose songs get played at rallies or events — such as blasting Barracuda by the band Heart to welcome “Sarah Barracuda” Palin to the ticket at the GOP Convention. But apparently the campaign has purchased traveling blanket licenses from ASCAP and BMI. That provides public performance rights to almost any mainstream tune the Republicans might want to play at a live event. This is pretty much open and shut in McCain’s favor, at least on copyright issues.

Other complaints stem from TV advertisements. For example, Mike Myers threatened suit over a quick clip from Wayne’s World used in one of McCain’s ads attacking Obama’s supposed “celebrity.” (”We’re not worthy!”) The copyright issues are murkier when it comes to use of clips in television commercials, where the ASCAP and BMI licenses do not apply. But as I have argued before, these sorts of uses are clearly fair use: they are transformative, brief, and have little or no market effect.

I understand celebrities who want to prevent John McCain from borrowing any of their cachet to run for president. I don’t support him either. But bogus IP claims harm overall public discourse by discouraging people from exercising their rights to draw on content legally when communicating their ideas. All of us lose out when that happens.

Even worse is the suggestion that trademark or publicity rights might address a false impression that heart endorsed McCain. These weak theories should not trump the access provided under copyright law. Trademark fair use doctrine certainly has weaknesses, but I hope it is robust enough to prevent celebrities from strangling public debate with such a tenuous argument.

Besides, in this case the whole IP angle is unnecessary. Public denunciation of candidates by the celebrities they draw on does more than a lawsuit to right any wrong and correct any mistaken notion of endorsement. It can even become a phenomenon all its own. After all, what’s the last time you wondered, “Who do the Wilson sisters support for president?” Now you know.

I will leave it to the likes of the incredible Rick Hasen and SCOTUSBlog’s Lyle Deniston — among many, many others — to talk about the important election law elements of Monday’s Supreme Court decision on voter identification in Crawford v. Marion County Election Board. But if you are a hammer everything is a nail, and if you are a privacy scholar every newspaper story is about privacy. And the privacy implications here are rather clear.

Quite appropriately, the case was briefed, argued, and decided on the basis of the burden that Indiana’s identification requirements placed (or didn’t place) on the right to vote. The seminal cases were Harper v. Virginia Board of Elections, which held the poll tax unconstitutional, and its progeny. Other key sources cited in the opinions included the Carter-Baker Commission report and two recent federal electoral reform statutes, the motor voter law and the Help America Vote Act. The burdens considered by both the lead opinion and the dissents were pragmatic ones, largely monetary cost and inconvenience.

What about privacy burdens?

Election law doctrine does not leave much room for their consideration. In other contexts, identification requirements are viewed as potential privacy intrusions. The continuing controversy and the backlash in state legislatures against the federal Real ID Act (see, e.g., here and here) is one such area. Likewise, the 2004 decision in Hiibel, though it upheld state “stop-and-identify” laws allowing police officers to demand that a suspect disclose his or her name, was also analyzed primarily as a privacy issue.

But in Crawford, there is no mention of the privacy impact of turning voting into yet another important activity that you cannot accomplish without “showing your papers.” And since it is now basically impossible to board an aircraft, enter a federal building, or cash a check without showing ID, voter ID requirements become just another event in an accelerating trend toward an ID society.

I’m not necessarily saying that Crawford was wrongly decided. But it is remarkable that “ID creep” has played such a small role in both the legal argument and the news coverage related to this controversial case. Indeed, I suspect that crabwise movement toward a de facto ID requirement, through individual rules that necessitate ID in more and more settings, is worse than a straightforward debate on a national ID card. Great Britain is going through that debate now (see, e.g., here and here); if the end result is a true national ID then at least all the arguments for and against will be fully aired. Just a thought.

[Cross-posted at Concurring Opinions.]

It might be different if this were the members of Congress themselves (whose salaries are set by statute) or perhaps their most senior aides. Can it really matter to “the public interest” precisely how much a senator or representative pays the twentysomethings who toil in a legislative office answering the mail or tracking the activities of the Subcommittee on Coast Guard and Maritime Transportation?

[snip]

If the benefits are worth it, then that’s fine, but too often we assume sunshine is healthy and ignore privacy. How many of us would like to have our salary available on the internet?

Now, as public radio’s Marketplace reports, the site has also posted the financial disclosure forms that senior staff must fill out. One dimension of this additional disclosure is less troubling than the salary data because, as I said back then, there is increasingly persuasive justification for sunshine as the responsibility and power of the staffer increase. Only senior staff (currently those earning over $111,000 a year) fill out these forms.

But another dimension potentially is more troubling, because these forms are extremely detailed. The Hill reports that some staff are alarmed that the forms include sensitive data such as “bank account numbers, signatures, home addresses and children’s names.” LegiStorm has scrubbed out social security numbers and account numbers, but “refused to remove the names of children, home addresses and staffers’ signatures.”

For its part, LegiStorm released a rather pugnacious statement accusing the congressional aides of “hysteria” and insisting that all responsibility for safeguarding privacy lies with individual staffers and with the House office that handles the forms, and not at all with the web site. Legally, they probably are right; usually information that the government makes public cannot be retracted. Practically speaking, it would be smart for the House to redesign its forms to request less sensitive information and to warn staff that the forms are public, and now online. And some of the concerns advanced by (often anonymous) staffers in the stories seem rather far-fetched.

But I also wonder why LegiStorm’s stance can’t be a little more cooperative, trying to balance legitimate interests in both transparency and privacy. One result of the heated tone of the disagreement may well be a reduction in the detail about staff finances the House makes public in any form. The whole dispute illustrates the difference between “public” documents available in a file room somewhere and “public” documents on the web. The idea that everything “public” must move online, unaltered, has always struck me as simplistic — and certainly not as obvious as LegiStorm seems to think.

There are, to be sure, gray areas in IP law. This isn’t one of them.

• Copyright law doesn’t protect words and short phrases, such as “Solutions for America.”
• Trademark infringement occurs only where the defendant uses the plaintiff’s mark in commerce (irrespective of whether we are talking about sections 32 or 43(a) of the Lanham Act), so a political rally clearly wouldn’t qualify.

So, better luck next time, “Inside Higher Ed”! But thanks for playing.

In typical Lessig fashion, he has crowdsourced the question whether he should run. At his new site, Lessig08.org, you can watch a ten-minute video that looks an awful lot like one of the PowerPoint presentations for which Lessig is known, then submit feedback on whether he should run or not. You can submit a contribution online that will go to Professor Lessig’s campaign if he decides to run, or to Creative Commons if he decides against it.

The world hardly teems with legal academics who have gone on to happy careers as holders of elective office, and I suspect Professor Lessig, who is as level-headed as they come, privately recognizes the quixotic character of his potential candidacy. It’s understandable and forgivable, I hope, that the first parallel Professor Lessig’s announcement brought to my mind was Roberto Unger, a HLS professor and perennial long-distance candidate for the presidency of Brazil. On the other hand, as has already been pointed out, if there was ever a Congressional district tailor-made for someone like Professor Lessig, it’s California’s 12th, which is loaded with technology companies and technologists, who are as close to a natural constituency as Professor Lessig is ever likely to find. It’ll surely be a race worth watching if it gets off the ground.

UPDATE #1: More from JP, JZ, Concurring Opinions, and David Weinberger.

UPDATE #2: On February 25, Prof. Lessig announced that he will not run.