Posted by: Ray Brescia | April 20, 2021

Digital Privacy and “The New Property”

It has been nearly sixty years since Charlie Reich published his landmark work in the Yale Law Journal entitled “The New Property”. In it, Reich posited that a range of interests deserved protection as “property” that could not be taken away by the government without due process of law, including, among other interests, welfare benefits. For Reich, the ability of government authorities to threaten such interests without constitutional protection undermined personal dignity and democracy. Such thinking started a sea change in the law, leading to decisions like Goldberg v. Kelly, in which the Supreme Court essentially adopted Reich’s approach, ruling that public assistance could not be withheld without proper due process protections. In a recent piece for an issue of the Touro Law Review that celebrated Reich’s life work, I revisit The New Property with an eye towards uncovering an often-overlooked aspect of The New Property: Reich’s additional concern for personal privacy. Through this lens, I examine how, today, private actors have a similar amount of unregulated control over our digital privacy, not unlike the government actors who Reich claimed had dominion over property interests. As with Reich’s concerns about a lack of protection for property interests, the lack of privacy protections in the digital sphere also threaten personal well-being and democracy itself. Below is the abstract. Link to the piece here.

This piece examines often-overlooked aspect of Charles Reich’s landmark work The New Property in the Yale Law Journal: his treatment of the notion of privacy and its connection to his theory of property interests. Reich expressed concerns regarding what he would call government largess—that is, the state’s control over interests such as licenses and welfare benefits that threatened to undermine human dignity and autonomy. Today, I will argue, such threats come mostly from the private sector in the form of the absence of digital privacy. Contrary to what one might expect from legal scholarship that was attempting to create a new class of property protections based on the nature of particular interests, Reich did not make an essentialist argument for why certain classes of interests, like welfare benefits and state-issued licenses, should receive greater protections. Indeed, instead of saying there was something inherent in these interests, he made what was a more consequentialist argument. Reich’s normative move was to say that we had to widen the aperture and recognize a broader class of interests as enjoying protection as property, not because of the nature of these interests but because of the critical benefits that would accrue to individuals were such interests to receive recognition through the law. As I explore in this piece, a critical concern of Reich’s regarding government largess was its threat to not just autonomy, but also privacy. As I also explore further here, today, the same sorts of features Reich identified as those of the “public interest state” (one where individuals are subject to government largess) are present in light of digital technologies and the lack of privacy in the use of such technologies. Reich’s theories about the New Property emerged in the late 1960s and early 1970s, a time when he was also examining the “Greening of America,” represented by what he called a new consciousness. These were also first moments of the dawning of the digital age when its networked fingers were just starting to emerge in military and university laboratories. While Reich would live to see this emergence, he had mostly retired from public life by the time digital and mobile technologies would seem to have a grip on the world, and techno-futurists would proclaim the likelihood of a singularity, yet another new consciousness, through which computers and human intellect would merge. This singularity appears to be upon us in some ways with the emergence of the digital world where much of our online life is subject to private largess. Given Reich’s concerns about the deleterious effects of government largess, I do not believe he would have welcomed this new, digital sphere that is subject to private largess.

Posted by: Ray Brescia | April 3, 2021

Zoning the Upside Down: Digital Privacy in Cyberspace

Is The Upside Down A Parallel Universe? | by Gaddie | Medium

Pleased and honored to report that the final version of my new piece, “Zoning Cyberspace: Protecting Privacy in the Digital Upside Down” is now out in the Utah Law Review. The abstract is below; available for download here.

Over fifty years ago, Charles Reich posited that we should extend property protections to what he would call “government largess”: that array of interests—from licenses to welfare benefits—that often form the bases for one’s economic existence in the modern world. Reich considered such protections essential to the preservation of individual autonomy, the independence that is critical to a functioning democracy. Today, our most personal information and even our thoughts as reflected in our online activities and digital existence are subject to “private largess.” Private entities possess information central to the identity of those individuals who utilize their services. This information exists in a digital “upside down,” to borrow a phrase from popular culture: an almost parallel universe or shadow world where our most intimate details are open to inspection and acquisition by third parties without our consent. Indeed, only a relatively weak set of institutions stand in the way, if they offer any resistance at all, to the sharing of such information by these entities in ways that undermine what I refer to throughout this piece as the integrity of identity: what should be a protected sphere of personal interests, desires, affiliations, and even our beliefs that make up the self. As we face calls for greater surveillance in the throes of the novel Coronavirus crisis, concerns that privacy protections will be further eroded loom large; what is more, any crisis-intervention measures may never be rolled back when the acute crisis dissipates. While much privacy scholarship focuses on the personal, individual, and private rights such risks to privacy entail, what I will focus on here are the dangers these threats pose to democracy because they undermine the integrity of identity and the collective goods that democracy produces. In so doing, I explore the critical benefits that accrue from the preservation of the individual’s integrity of identity because of the central role that such integrity plays in the enterprise of collective meaning making, the realization of self-determination, the creation of social capital and societal trust, and the bringing about of social change. In a landmark article, Calabresi and Melamed argued that we should protect different entitlements through those rules that produce desired results in society, including solving collective action problems. They would classify these different approaches as either property, liability, or alienability rules. This Article draws from and builds upon the work of Reich, Calabresi, and Melamed to argue that, as in several property law contexts, from the mortgage market to zoning, among others, where we use what I call “hybrid” rules—rules that combine elements of property, liability and alienability approaches—to solve collective action problems, we should see the problem of privacy in the digital world as a collective action problem that requires similar, hybrid solutions, i.e., an approach that combines elements of all three rules identified by Calabresi and Melamed. Indeed, this Article argues for a form of what I call digital zoning that utilizes all three approaches in the Calabresi and Melamed taxonomy through hybrid rules to help preserve privacy, autonomy, and self-determination in the digital world.

Please join the student chapters of the American Constitution Society at American University, Washington College of Law; The George Washington University Law School; the American Constitution Society DC Lawyer Chapter; Albany Law School; and the National American Constitution Society, for a virtual discussion about the new book “Crisis Lawyering: Effective Legal Advocacy in Emergency Situations” (NYU Press, 2021). 1.5 Professional Practice NY CLE credits available. Here’s the all-star lineup of speakers:

Prof. Christy E. Lopez
Professor from Practice, Georgetown Law Center and author: “Responding to the (Dual) Policing Crisis in Ferguson,” in Crisis Lawyering.

Richard Pinner
Associate Counsel, Local Initiatives Support Corporation and author: “Litigation for the Homeless in the 1980s: A Look Back” in Crisis Lawyering.

Prof. Sarah Rogerson
Director of the Justice Center and Professor of Law, Albany Law School, and author: “Preparation, Crisis, Struggle, Idea: The Birth of the Detention Outreach Project,” in Crisis Lawyering.

The conversation will be moderated by yours truly.

1.5 Hours of free NY CLE is available for attendance.

Participation is free and open to the public but registration is required. Register here.

Posted by: Ray Brescia | March 17, 2021

Crisis Lawyering: A Discussion Moderated by Dahlia Lithwick

Please join us for this event. Registration is free but required to get access to the link. Please register here.

Posted by: Ray Brescia | March 4, 2021

March 8th — Virtual Book Launch Event: Crisis Lawyering

On Monday, March 8th, from 3:30-5 pm, please join my co-editor, Eric Stern, and contributors Sarah Rogerson of Albany Law, Lee Wang of the Immigrant Defense Project, and David McCraw of the New York Times, for a virtual discussion about lawyering in crisis situations. Free NY CLE is provided. Register here. A discount code for purchase of the book will be provided upon registration. Participation is free but registration is required. You can download the book’s introduction here.

Posted by: Ray Brescia | February 26, 2021

Come for the CLE: Stay for the Conversation

Join my colleague Sarah Rogerson, book contributors Lee Wang of the Immigrant Defense Project and Albany Law Board Member David McCraw of the New York Times, and my co-editor Eric Stern for a conversation about Crisis Lawyering: Effective Legal Advocacy in Emergency Situations via Zoom on March 8th at 3:30. 1.5 credits of NY CLE will be available. Registration is free and open to the public, but registration is required. Please do so here. As an added bonus, those who register will receive a discount code for purchase of the book.

Posted by: Ray Brescia | February 25, 2021

On Three Crises and the Future of the Legal Profession

In a forthcoming piece in the Hofstra Law Review, I examine the potential impact of three crises–the pandemic, racial injustice, and the threats to the rule of law–on the future of the legal profession. A pre-publication draft is available for download here. Below is the abstract. Since it is just a draft, comments are definitely welcome.

The United States faces three simultaneous crises: a pandemic, a civil-rights reckoning, and a crisis of democracy.  The first of these crises has sparked dramatic—though potentially temporary—changes to the practice of law: moving much legal work to remote settings almost overnight, after the profession had largely resisted making such accommodations for decades.  The second has sparked an assessment of the extent to which the practice of law and the legal system are both riddled with racism and institutional bias.  The third, the crisis of democracy, has lawyers at its center, filing frivolous claims and fomenting an armed insurrection with designs on overturning the results of a free and fair election.  If the past is any guide, these crises will provoke a period of introspection within the legal profession and prompt calls for change.  What the profession tends to do in the wake of such crises and in response to such calls, however, is tinker around the margins of the rules regarding the operation of the profession, leading to little substantive, long-term, formal change.  It is entirely possible, if not likely, that the legal profession could respond to these crises according to this same pattern.  It does not have to be that way, however.  This Article calls on the profession—even as we are still in the midst of these crises in many ways—to seize the opportunity to advance real, lasting, and meaningful change and recommit to the central role it must play in the defense of the rule of law and democracy.

Posted by: Ray Brescia | February 23, 2021

Released Today: Crisis Lawyering

It’s the official release date of Crisis Lawyering: Effective Legal Advocacy in Emergency Situations from NYU Press.  Read about litigation over the Trump travel ban, the representation of detainees on Guantánamo, the preparation of the DOJ’s Ferguson Report and so much more.  Check out the list of contributors here and download the introductory chapter here.  Go to NYU Press and enter CRISIS30 for a 30% discount.

Posted by: Ray Brescia | January 15, 2021

New (and Timely) Book: “Crisis Lawyering”

Crisis situations, from the pandemic and climate-change-fueled natural disasters to anti-democratic violence, seem to be happening with greater intensity, frequency, and force.  At the center of many of these crises are lawyers. From Guantánamo to Ferguson, the Trump Travel Ban to Election Day, lawyers often play critical roles in addressing and finding a way out of or through a given crisis.  A new book that NYU Press will publish in February, Crisis Lawyering: Effective Legal Advocacy in Emergency Situations is available now for pre-order at this link. It provides first-person accounts of lawyers dealing with these sorts of crises and more, offering key insights, strategies, and tactics to lawyers who have to deal with a range of crisis situations on a regular basis in their work, or even those who want to know how to prepare for the next crisis, no matter its source.  It’s also a great read!  It was my great honor, together with Eric K. Stern, to edit this work.  The full list of contributors and chapters is below.  Use the discount code CRISIS30 through the NYU Press website to obtain a 30% discount!

Ray Brescia and Eric K. Stern

Introduction: Lawyers as Problem-Solvers in Crisis

Part I: Beyond the Familiar and the Imperative of Creativity

Caroline Bettinger-López: A Client’s Crisis Becomes a Legal Crisis: A Domestic Violence Ruling Goes Global

Baher Azmy: Crisis Lawyering in a Lawless Space: Reflections on Nearly Two Decades of Representing Guantánamo Detainees

Christy E. Lopez: Responding to the (Dual) Policing Crisis in Ferguson

David E. McCraw: When Crisis Comes to the Newsroom: The Media Lawyer in a Time of Global Unrest

Lee Wang: Crisis in the Courts: The Campaign to Get ICE Out of New York State Courts

Sarah Rogerson: Preparation, Crisis, Struggle, Ideas: The Birth of the Detention Outreach Project

Part II: Crisis and Systemic Contexts

John Travis Marshall: Key Considerations for Lawyers Shepherding Communities Through Long- Term Recovery from Major Disasters

Eleanor Stein: Judging and Mediating for the “Long Emergency”:  Superstorm Sandy, New York State’s Regulatory Response to the Climate Change Crisis, and Reforming the Energy Vision

Richard Pinner: Litigation for the Homeless in the 1980s: A Look Back

Carmen Huertas- Noble, Missy Risser- Lovings, and Christopher Adams: Scaling Worker Cooperatives as an Economic Justice Tool for Communities in Crises

David S. Turetsky: The Crisis Comes Once a Year: Lawyering on Election Day

Part III: Beyond Borders and Silos

Brian Wilson and Nora Johnson: Bordering on Crisis: Overcoming Multiagency Crisis Coordination Challenges

Eric K. Stern, Brad Kieserman, Torkel Schlegel, Per- Åke Mårtensson, and Ella Carlberg:

Legal Advice in Crisis Training for Government Lawyers:  Perspectives from the United States and Sweden

Part IV: Educating and Skill- Building 

Muneer I. Ahmad and Michael J. Wishnie: Call Air Traffic Control! Confronting Crisis as Lawyers and Teachers

Scott Westfahl: Leveraging Lawyers’ Strengths and Training Them to Support Team Problem- Solving Under Crisis Conditions

Jay Sullivan: Stay Calm and Carry On: How to Stay on Point When in a Crisis

Ray Brescia and Eric K. Stern: Conclusion

Posted by: Ray Brescia | January 11, 2021

Insurrection and the Institutions of Democracy

The 3 Pillars of Depression – Rapid Change Therapies

The institutions of our democracy seem to have held in the face of baseless allegations of electoral fraud and a failed insurrection. What is more, over the last few days, news has broken that a range of social media and other digital platforms have removed President Trump from access to them, and have begun to take similar action against individuals who appear to have supported the coup attempt at the Capitol last week. Dominion Voting Systems has filed a billion dollar lawsuit against lawyer Sydney Powell for defamation for her baseless claims of vote rigging against the company. Congress seems poised to take impeachment action against the President as well, though it is unlikely the process will run its course in the House and Senate prior to Trump leaving office, which does not mean it cannot conclude after President-Elect Biden takes the oath of office. In other words, our institutions appear to be rallying in the face of an unprecedented attack on the foundations of democracy. Whether it is institutions in the private sector, the courts, or Congress, they seem to be working to a certain extent–even if not in concert–to preserve democracy. At the same time, each institutional field, whether it is private social media platforms, the federal and state judiciary, or Congress, will be unable to operate in isolation. Their work must be integrated.

What would such a coordinated, institutional response to preserve democracy and hold those who would undermine it accountable look like? When Congress gets to work after new senators Warnock and Ossoff are seated later in the month it must take a look at the ways in which we can strengthen the ability to ensure our institutions are as robust as possible to fend off what is certain to be further attacks. It should take up reform of Section 230 of the Communications Decency Act so that internet companies can be held responsible for inciting conduct that occurs on their platforms. It should also seek to renew efforts to pass the John Lewis Voting Rights Advancement Act. Both will require some degree of bi-partisan support, and perhaps in the wake of institution-shaking actions of the last few months, stirred on social media, at least some Republicans will see that a path that is paved by deceit, violence, and voter suppression will inevitably undermine further our democratic foundations. Similarly, courts should not hesitate to serve as a field where issues of platform liability can be resolved. While internet business might have finally taken action against incitements to violence, such actions are mostly a function of their private largess–their choice to take such actions. They are still mostly self-regulated. Courts, by serving to adjudicate some of the worst privacy violations, including holding Facebook somewhat accountable for the Cambridge Analytica scandal, at least have played some role in reining in some of the worst conduct carried out on these platforms. Furthermore, legislative bodies should consider punishment for elected officials who participated in or incited the January 6th actions. Bar associations should consider disciplinary action against lawyers who did the same. In other words, while our institutions have largely held so far, they must continue to play a significant role in holding actors accountable for their actions, and shoring up their ability to protect against future, similar efforts. They must also work collaboratively, and not at cross-purposes.

In a paper forthcoming in the Florida State University Law Review, I examine how this sort of collaborative institutional response could play out when it comes to protecting digital privacy. Its core claim is that in order for our institutions to play a critical role in the digital space, a weak approach in one institutional field–the private sector, the public sector (legislators and executives), or the courts–can have negative spillover effects in other sectors. Thus, a consistent and coordinated institutional response is essential to effective policymaking. This analysis is easily applied to methods for preserving the functioning of our democracy. It will require all of our institutions working towards a common goal–that of ensuring our democracy-preserving institutions wherever they may be found are protected, robust, and resilient.

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