From Nicholas Thompson’s “Who Needs Keys?” (Legal Affairs: November/December 2004):
The event was organized by 2600, a quarterly magazine whose name refers to one of the great discoveries in hacker history: that the plastic whistles given away free in boxes of Cap’n Crunch cereal in the early 1970s could be slightly modified to create sound waves of 2600 MHz, a frequency that allowed you to make free calls on the old AT&T phone system.
The origins of 2600 Read More »
From Brendan I. Koerner’s “Your Cellphone is a Homing Device” (Legal Affairs: July/August 2003):
Law enforcement likewise views privacy laws as an impediment, especially now that it has grown accustomed to accessing location data virtually at will. Take the MetroCard, the only way for New York City commuters to pay their transit fares since the elimination of tokens. Unbeknownst to the vast majority of straphangers, the humble MetroCard is essentially a floppy disk, uniquely identified by a serial number on the flip side. Each time a subway rider swipes the card, the turnstile reads the bevy of information stored on the card’s magnetic stripe, such as serial number, value, and expiration date. That data is then relayed back to the Metropolitan Transportation Authority’s central computers, which also record the passenger’s station and entry time; the stated reason is that this allows for free transfers between buses and subways. (Bus fare machines communicate with MTA computers wirelessly.) Police have been taking full advantage of this location info to confirm or destroy alibis; in 2000, The Daily News estimated that detectives were requesting that roughly 1,000 MetroCard records be checked each year.
A mere request seems sufficient for the MTA to fork over the data. The authority learned its lesson back in 1997, when it initially balked at a New York Police Department request to view the E-ZPass toll records of a murder suspect; the cops wanted to see whether or not he’d crossed the Verrazano Narrows Bridge around the time of the crime. The MTA demanded that the NYPD obtain a subpoena, but then-Justice Colleen McMahon of the State Supreme Court disagreed. She ruled that “a reasonable person holds no expectation of confidentiality” when using E-ZPass on a public highway, and an administrative subpoena – a simple OK from a police higher-up – was enough to compel the MTA to hand over the goods.
It’s easy to track someone using a MetroCard Read More »
From Brendan I. Koerner’s “Your Cellphone is a Homing Device” (Legal Affairs: July/August 2003):
What your salesman probably failed to tell you – and may not even realize – is that an E911-capable phone can give your wireless carrier continual updates on your location. The phone is embedded with a Global Positioning System chip, which can calculate your coordinates to within a few yards by receiving signals from satellites. GPS technology gave U.S. military commanders a vital edge during Gulf War II, and sailors and pilots depend on it as well. In the E911-capable phone, the GPS chip does not wait until it senses danger, springing to life when catastrophe strikes; it’s switched on whenever your handset is powered up and is always ready to transmit your location data back to a wireless carrier’s computers. Verizon or T-Mobile can figure out which manicurist you visit just as easily as they can pinpoint a stranded motorist on Highway 59.
So what’s preventing them from doing so, at the behest of either direct marketers or, perhaps more chillingly, the police? Not the law, which is essentially mum on the subject of location-data privacy. As often happens with emergent technology, the law has struggled to keep pace with the gizmo. No federal statute is keeping your wireless provider from informing Dunkin’ Donuts that your visits to Starbucks have been dropping off and you may be ripe for a special coupon offer. Nor are cops explicitly required to obtain a judicial warrant before compiling a record of where you sneaked off to last Thursday night. Despite such obvious potential for abuse, the Federal Communications Commission and the Federal Trade Commission, the American consumer’s ostensible protectors, show little enthusiasm for stepping into the breach. As things stand now, the only real barrier to the dissemination of your daily movements is the benevolence of the telecommunications industry. A show of hands from those who find this a comforting thought? Anyone? …
THE WIRELESS INDUSTRY HAS A NAME FOR SUCH CUSTOM-TAILORED HAWKING: “location-based services,” or LBS. The idea is that GPS chips can be used to locate friends, find the nearest pizzeria, or ensure that Junior is really at the library rather than a keg party. One estimate expects LBS to be a $15 billion market by 2007, a much-needed boost for the flagging telecom sector.
That may be fine for some consumers, but what about those who’d rather opt out of the tracking? The industry’s promise is that LBS customers will have to give explicit permission for their data to be shared with third parties. This is certainly in the spirit of the Wireless Communications and Public Safety Act of 1999, which anticipated that all cellphone carriers will feature E911 technology by 2006. The law stipulated that E911 data – that is, an individual’s second-by-second GPS coordinates – could only be used for nonemergency purposes if “express prior authorization” was provided by the consumer. …
Tracking via cell phone is easy Read More »
From Nadya Labi’s “Want Your Kid to Disappear?” (Legal Affairs: July/August 2004):
RICK STRAWN IS AN EX-COP WHO STARTED HIS COMPANY in 1988 to help police officers find off-duty work guarding construction sites. Ten years later, he was asked by a member of his United Methodist church to transport the churchgoer’s son to Tranquility Bay in Jamaica. The school is run by the World Wide Association of Specialty Programs, a company headquartered in Utah that owns eight schools in the United States and abroad, including Louis, Jr.’s destination. …
Three years ago, Strawn escorted Valerie Ann Heron, a 17-year-old from Montgomery, Ala., to Tranquility Bay. The school is the most hardcore in the WWASP system, the one to which students are sent when they repeatedly cause trouble at other schools. …
The world according to Strawn is based on choices and consequences. The world according to WWASP is designed to reinforce the same principle. Students enter Casa by the Sea at the first of six levels. To advance, they have to earn points through good behavior and schoolwork. Until they reach level three, which takes an average of three months, they can communicate with the outside world only through letters to their parents, which the school monitors. After that, they can talk on the phone to their parents but no one else.
Casa costs nearly $30,000 for a year – as much as a year’s tuition at Harvard – but offers no traditional academic instruction. Instead the schoolwork is self-paced; the students sit at tables with a workbook and take a test on a section when they decide they’re ready. They can retake the same test as many times as necessary to achieve an 80 percent passing grade. According to the Casa parent handbook, the school does not ensure that “the student will even receive any credits” or that the teachers who monitor the study sessions will have U.S. credentials. The school does not track how many of its students go on to high school or college. “You’re not going to have a teacher riding your back,” Dalton told Louis. “It’s all independent study. I just read the module, and did the test. I finished class in a week. That’s how easy it is.”
Students spend more time studying themselves than any other subject. They write daily reflections in response to self-help tapes and videos such as Tony Robbins’s Personal Power, You Can Choose, and Price Tag of Sex. They answer questions like “What feelings/emotions did I experience today and how did I choose to respond?”
Students also attend, and eventually staff, self-help seminars. The entry-level seminar, called Discovery, encourages participants to “learn to interrupt unconscious mental and emotional cycles which tend to sabotage results.” Kelly Lauritsen participated in Discovery at Casa in 2000 and said she was encouraged to hit the walls with rolled towels to release her anger. The price of tuition includes versions of these seminars for parents. Like Oprah on speed, sessions run nonstop from morning until midnight. Many parents and kids say they benefit from the self-analysis. “I didn’t realize that I had so much anger inside,” the 14-year-old girl whom Strawn transported in November wrote to her mother. …
Strawn told Louis that the hardest thing about Casa would be abiding by the school’s intricate system of discipline. “It’s not the big rules that get you. It’s all the little rules,” Strawn said. Casa docks students, according to its handbook, for telling “war stories” about inappropriate experiences, for being unkind to each other, and for making “negative statements about the School, the staff, the country, or other students.”
“There’s a whole page of rules,” said Shannon Eierman, who attended Casa last year. “That page is divided into sections of categories, into different codes, and a million subcategories. You could be there forever and the next day and learn a new rule.”
Students at Casa who commit “Category 5 infractions” can be punished with an “intervention,” for example, which is defined as being left alone in a room. Students say that the punishment can last for weeks, though Casa insists that the maximum penalty is three days. “I had to sit with crossed legs in a closet for three days,” said Kaori Gutierrez, who left Casa in 2001. Interventions may be used to punish out-of-control behavior, drug use, and escape attempts. But they’re also the way the school handles “self-inflicted injuries,” which can range from cracked knuckles to self-mutilation with pens or paper clips to an attempted suicide.
At the root of this long list of punishable violations is “manipulation,” which includes lying or exaggerating. Strawn repeatedly uses the word to dismiss a kid’s behavior – it’s the way he said Valerie Heron acted the day before her suicide. In the WWASP universe that he inhabits, manipulation is a term of art that refers to just about anything a teen does or says that the staff doesn’t like.
Kids forcibly sent to re-education programs Read More »
From Hiroshi Matsubara’s “Trial By Prosecutor” (Legal Affairs: March/April 2003):
In 1990, a retired high-court judge gave an influential speech that indicted the criminal justice system [of Japan], citing the nation’s 99.8 percent conviction rate as evidence that prosecutors, not courts, decide the fate of criminals. Criminal trials, he declared, are merely “formal ceremonies” en route to conviction. …
Prosecutors are vested with tremendous authority, and courts routinely defer to prosecutorial judgment. The prosecutor, in collaboration with law enforcement, is expected not only to enforce the laws but to decide how to use them to serve the public good. He is given far broader powers of investigation than his American counterpart, including the ability to search, seize, and interrogate without the interference of defense counsel. Justice in Japan is often equated to cooperating with the prosecutor. One of the earliest changes made by legislators to the American legal framework was the addition of a “societal duty” to submit to questioning upon arrest.
Because of their importance in the Japanese system, prosecutors have an overwhelming need to be right. A single loss can end their career. Prosecutors nearly always go to trial with a confession in hand, meaning that criminal courts are rarely asked to decide guilt or innocence. At trial, the counsel for the defendant usually spends his time trying to demonstrate the client’s contrition, his chances of being rehabilitated, and the low risk he poses to society – factors that affect the sentence, not the verdict.
Even in contested cases, the outcome for defendants is bleak. In American federal courts, about one-fifth of all criminal defendants plead innocent – and of those, one-third are subsequently convicted (state numbers indicate a similar trend). Meanwhile, in Japan, despite the fact that only 7 percent of defendants choose to contest their prosecution, the conviction rate in such instances is still about 99 percent. …
But in the aftermath of this unlikely victory, the system turned on Mainali. A higher court stayed his acquittal and ordered him detained while the finding at trial was reconsidered. In the United States, where defendants are protected against double jeopardy, Mainali’s acquittal would have ensured that he went free. Japan has no such standard: The opportunity to appeal a criminal acquittal is just one more weapon in the prosecutorial arsenal. Critics have pointed out that the stigma of losing a case puts prosecutors under great pressure to appeal each and every acquittal. In the notorious Kabutoyama case, prosecutors spent 21 years unsuccessfully appealing not-guilty verdicts handed down against a teacher charged with killing one of her students. …
Japanese prison terms, for both violent and nonviolent offenses, are shorter than those for comparable crimes in the United States. Murder, for instance, can carry a sentence of as little as three years. What is indisputable, however, is that in failing to emphasize procedural justice – a system based on rights and vigorous advocacy – Japan entrusts the integrity of its system to the good judgment of its prosecutors.
Japan’s 99.8% criminal conviction rate Read More »
From John Diamond and Leslie Cauley’s “Pre-9/11 records help flag suspicious calling” (USA TODAY: 22 May 2006):
Armed with details of billions of telephone calls, the National Security Agency used phone records linked to the Sept. 11, 2001 attacks to create a template of how phone activity among terrorists looks, say current and former intelligence officials who were briefed about the program. …
The “call detail records” are the electronic information that is logged automatically each time a call is initiated. For more than 20 years, local and long-distance companies have used call detail records to figure out how much to charge each other for handling calls and to determine problems with equipment.
In addition to the number from which a call is made, the detail records are packed with information. Also included: the number called; the route a call took to reach its final destination; the time, date and place where a call started and ended; and the duration of the call. The records also note whether the call was placed from a cellphone or from a traditional “land line.” …
Calls coming into the country from Pakistan, Afghanistan or the Middle East, for example, are flagged by NSA computers if they are followed by a flood of calls from the number that received the call to other U.S. numbers.
The spy agency then checks the numbers against databases of phone numbers linked to terrorism, the officials say. Those include numbers found during searches of computers or cellphones that belonged to terrorists.
It is not clear how much terrorist activity, if any, the data collection has helped to find.
Social network analysis by the NSA Read More »
From Daniel Brook’s “The Problem of Prison Rape” (Legal Affairs: March/April 2004):
When inmates seek civil damages against the prison system, as [Roderick Johnson, a 35-year-old African-American who is suing the Texas Department of Criminal Justice] has done, they must prove not merely that prison officials should have done more to prevent abuse but that they showed “deliberate indifference” – that is, that they had actual knowledge that an inmate was at risk and disregarded it. Showing that a prison guard should have known is not enough, no matter how obvious the signs of abuse.
This standard was established by the Supreme Court in the 1994 case Farmer v. Brennan, in which a transsexual inmate imprisoned for credit card fraud sued federal prison officials for ignoring his rape behind bars. While the court affirmed that prison rape is a violation of an inmate’s constitutional rights and stated plainly that sexual assault is “not part of the penalty that criminal offenders pay for their offenses,” it set up formidable barriers to establishing the culpability of corrections staff. At the cellblock level, the “deliberate indifference” standard discourages prison guards from shining a light into dark corners. What they don’t know can’t hurt them.
Why it’s hard for prisoners to sue prison systems Read More »
From Daniel Brook’s “The Problem of Prison Rape” (Legal Affairs: March/April 2004):
In his 18 months at [the maximum-security Allred Unit in Iowa Park, Tex.], [Roderick Johnson, a 35-year-old African-American who is suing the Texas Department of Criminal Justice] did time as the property of the Bloods, the Crips, the Mandingo Warriors, and the Mexican Mafia, all of whom forced him to have sex with their members. They also sold his services to other inmates, usually for between $5 and $10. (A cigarette in Allred goes for $1.50.) …
The prevalence of rape in prison is fearsome. Line officers recently surveyed in one southern state estimated that one in five male prisoners were being coerced into sex; among higher-ranking officials, the estimate was one in eight. Prisoners themselves estimated one in three. (Female prisoners are the victims of rape as well, though they are usually assaulted by male guards, not other inmates; the phenomenon of male-on-male prison rape is generally studied separately.) …
The traditional rationale for prison rape is the lack of women, but most psychologists consider this facile. They see prison rape mainly as a means by which people who have been stripped of control over the most basic aspects of their lives – when to eat a meal, take a shower, or watch TV – can reclaim some sense of power. As one Louisiana prisoner, Wilbert Rideau, wrote, “the psychological pain involved in such an existence creates an urgent and terrible need for reinforcement of [a prisoner’s] sense of manhood and personal worth.” Others believe that prisoners become rapists out of fear of becoming victims themselves; it’s a choice between becoming predator or prey. The psychologist Daniel Lockwood, in his study Prison Sexual Violence, calls this strategy “pre-emptive self-defense.” …
IN 1826, IN WHAT WAS LIKELY THE FIRST PUBLISHED MENTION of prison rape in the history of the republic, the Rev. Louis Dwight wrote that “Boys are Prostituted to the Lust of old Convicts” throughout the institutions he surveyed from Massachusetts to Georgia. Dwight, the founder of the Prison Discipline Society of Boston, a prison reform group, wrote that “Nature and humanity cry aloud for redemption from this dreadful degradation.” It was not until the 21st century, however, that the nation saw its first anti-prison-rape legislation.
Last year, Congress passed the Prison Rape Reduction Act, which allocates $60 million to support rape-prevention programs run by federal, state, and local corrections staff and to aid investigations and punishment of perpetrators. The bill, which enjoyed bipartisan support in the House and the Senate, also requires states to collect statistics on prison rape.
History & numbers on prison rape Read More »
From Suzanne Snider’s “Old Yeller” (Legal Affairs: May/June 2005):
The legal-size legal pad has been under attack since as early as 1982, when then Chief Justice Warren Burger banished legal-size documents from federal courts. One informal survey estimated Burger’s move saved almost $16 million through more efficient use of storage space. Several states followed the federal government’s lead …
Why courts don’t use legal-size documents any longer Read More »
From Sasha Issenberg’s “On Notice” (Legal Affairs: July/August 2005):
In the Middle Ages, the Crown designated a half-dozen sites in London where a herald would read proclamations from the king. These announcements first found their way into print in 1665 when the London Gazette, considered the first English-language newspaper (at least as we now understand the term), began publishing. It was the Crown that put out the Gazette, and thus the newspaper was little more than a broadsheet filled with public notices.
In the 1690s, private competition reached the London newsstand. Yet even those newspapers that were not published directly by the government continued to seek its consent and imprimatur. In 1704, across the Atlantic, a newspaper called The Boston Newsletter hit the streets of the Hub; like many early American newspapers, it bore the slogan, “Published by Authority.” Though newspapers had ceased to exist merely for the purpose of publishing government decrees, they continued to run the notices as proof of the papers’ journalistic credibility. “Unlike in our day, it was looked at as an act of authenticity,” says Charles Clark, a professor emeritus of history at the University of New Hampshire who wrote about early American newspapering in a book called The Public Prints.
Sometimes these announcements appeared under the rubric “Proclamations for Royal Government,” Clark explained, but usually papers “just printed the notices in what we would think of as the news columns – even though that distinction is a bit of a stretch for those days. In many instances the notices constituted the news.” (Toward the end of the 18th century, according to Clark, newspapers also began to feature private-sector legal announcements: creditors demanding payment were popular. “The most frequent things,” Clark said, chuckling, “are men putting in notices: ‘My wife is leaving my bed and board. I shall no longer be responsible for her debt.’ “) …
In 1789, among the acts of the first session of the Congress was a directive to the secretary of state to publish all bills, orders, resolutions, and votes in at least three newspapers.
For its efforts at transparency, the fledgling government was rewarded with an increasingly suspicious press. During the 1790s, the Philadelphia-based Gazette of the United States made it clear that government would not be left to speak for itself through notices; the paper placed a correspondent in Congress. “He reported what he saw, not the official words,” Clark said. After the election of George Washington, the colonial press that had cuddled with government gradually became American media that sought to establish distance from it. In addition to soliciting the government for announcements, the press began to cover the government journalistically. …
A history of the public notice Read More »
From Roderick M. Hills, Jr.’s “The Federalist Capers” (Legal Affairs: May/June 2005):
BY CONTRAST WITH THE COURT’S RECORD IN ECONOMIC MATTERS, the pre-New-Deal court was oddly reluctant to impose any limits on federally sponsored cultural conservatism. The Mann Act, which prohibited any person from aiding in the interstate transportation of a “woman or girl” for “prostitution, or debauchery, or for any other immoral purpose,” provides a useful illustration of the limits that judicially enforced federalism will go to.
Congress enacted the Mann Act in 1910 by comfortable majorities, in the wake of a national furor over allegations that young women were being kidnapped by syndicates of brothels and forced to work as prostitutes. In retrospect, historians explain the panic over “white slavery” as largely attributable to anxieties over immigration (the syndicates were said to be run by foreigners, especially foreign Jews) and urbanization, which led to a rise in the numbers of unaccompanied single women visible in public places.
Although the act was inspired by fears of coerced prostitution, it was soon enforced by the federal government as part of a crusade against nonmarital sex in general. As David Langum has shown in Crossing Over the Line, a large majority of the FBI’s Mann Act investigations during the 1920s was for noncommercial offenses, typically prosecutions of unmarried but romantically involved couples who crossed state lines. Even the purpose of protecting women from coercion was soon dropped. The Department of Justice took the view that the female “victim” should generally be prosecuted as a co-conspirator if she consented to “immoral” travel. Charges were frequently foregone if the “victim” married the perpetrator, suggesting that the statute was really a federal effort to protect males’ control over their wives and daughters. Though the federal government abandoned the effort to enforce the Mann Act in the 1930s against noncommercial sex, J. Edgar Hoover later used it in raids on brothels to collect information about public persons, like Charlie Chaplin, whom he regarded as subversive.
In short, the Mann Act was everything that you would expect from centralized enforcement of sexual morality – oppressive, gratuitous, and subject to all the abuses of prosecutorial discretion. The regulation of interstate transportation was a thin pretext for federal intervention, given that the act’s authors surely were not concerned that the states were somehow incompetent to regulate sexual morality within their boundaries.
In light of all of these concerns, you might expect that the Supreme Court would have found the Mann Act to be an easy case for invalidation under principles of federalism. But the court unanimously upheld the act in 1913 in Hoke v. United States, and then also upheld its application to noncommercial consensual sexual liaisons four years later in Caminetti v. United States.
The Mann Act as problematic law Read More »
From Stéphanie Giry’s “An Odd Bird” (Legal Affairs: September/October 2002):
After a weeklong journey from France, crates of sculptures by Constantin Brancusi arrived in New York harbor on the steamship Paris, escorted by the artist Marcel Duchamp. It was October 1926 and the sculptures were to be exhibited in the city at the avant-garde Brummer Gallery. United States Customs officials opened the crates and uncovered 20 mysterious disks, eggs, and flame-like forms of carved wood, polished metal, or smooth marble. One work in particular left them dumbfounded: a thin, 4 1/4-foot-tall piece of shiny yellow bronze with a gently tapering bulge called Bird in Space. It didn’t look like a bird to the officials, so they refused to exempt it from customs duties as a work of art. They imposed the standard tariff for manufactured objects of metal: 40 percent of the sale price, or $240 (about $2,400 in today’s dollars). …
Under pressure, the customs office agreed to reconsider its decision. In the meantime, it released Bird in Space and other sculptures, on bond and under the classification “Kitchen Utensils and Hospital Supplies,” so they could be exhibited at the Brummer Gallery and then at the Arts Club in Chicago.
Both shows were successes, but in February 1927 the federal customs appraiser F.J.H. Kracke confirmed his office’s initial finding that any sculptures Brancusi sold in the United States, like Steichen’s Bird, would be subject to duty. In an interview with the New York Evening Post, Kracke explained his ruling: “Several men, high in the art world were asked to express their opinions for the Government…. One of them told us, ‘If that’s art, hereafter I’m a bricklayer.’ Another said, ‘Dots and dashes are as artistic as Brancusi’s work.’ In general, it was their opinion that Brancusi left too much to the imagination.”
The next month, Steichen filed Brancusi v. United States to appeal customs’ decision. Abstract Art was now on trial. …
Six influential figures testified for Brancusi: Steichen, who was an established photographer; the sculptor Jacob Epstein; Forbes Watson, the editor of the review The Arts; Frank Crowninshield, the editor of Vanity Fair; William Henry Fox, the director of the Brooklyn Museum of Art; and the art critic Henry McBride. The witnesses for the government, the sculptors Robert Aitken and Thomas Jones, now long forgotten, enjoyed great academic reputations at the time. Judge Young was new to the Customs Court. The 75-year-old Waite had been serving on it and its earlier incarnation, the Board of General Appraisers, for 25 years.
Also present in the courtroom as Exhibit 1 was the Bird, which sat on a table, shimmering and soaring toward the ceiling while the lawyers debated whether it was an “original sculpture” or a metal “article or ware not specially provided for” under the 1922 Tariff Act. For the Bird to enter the country duty-free under the act, Steichen’s lawyers had to prove that Brancusi was a professional sculptor; that the Bird was a work of art; that it was original; and that it had no practical purpose.
By 1927 and after four one-man shows in New York, there was little question that the 51-year-old Brancusi was recognized as a professional sculptor – controversial perhaps, but definitely well-known. There was also little question that the Bird had no utility, even though the customs office had released it under the classification “Kitchen Utensil.”
But because Brancusi had shown four other bird sculptures like Steichen’s at the Brummer show, it wasn’t clear whether Steichen’s was the only one of its kind. And it was far from clear whether the Bird could be called art, because it looked like nothing anyone had ever seen before.
During the hearing, Judges Young and Waite placed great emphasis on the Bird’s title. The Tariff Act didn’t require that sculptures be realistic, but under a 1916 Customs Court decision called United States v. Olivotti sculptures qualified as art works only if they were “chisel[ed]” or “carve[d]” “imitations of natural objects,” chiefly the human form representing such objects “in their true proportions.” …
When he was 26, according to legend, Brancusi set out on foot on the 1,200-mile journey to Paris; however he got there, in 1904 he enrolled at the prestigious école des Beaux Arts. The decade that followed was marked for him by poverty, hard work, and eventually a place in the avant-garde community among Duchamp, Ezra Pound, Amedeo Modigliani, and Erik Satie, who would become his friends and transforming influences. At an exhibit in Paris in 1906, Auguste Rodin, then the towering figure in sculpture, spotted one of Brancusi’s pieces and invited him to work in his studio. Brancusi declined because he believed “nothing grows well in the shadow of a big tree.” …
But to Thomas Jones, a professor at Columbia who testified for the customs office, the Bird was “too abstract and a misuse of the form of sculpture.” Robert Aitken, the government’s other witness, said that art should “arouse an unusual emotional reaction” and “[stir] the esthetics, the sense of beauty.” …
Every work [by Brancusi] was unique and made of a different material, with different proportions and a different harmony. Brancusi had carved variations of the Bird out of white, yellow, and black marble and bronze of varying composition, each time coaxing the stone or the metal to reveal something new about the form. As Brancusi explained, all of those pieces were part of the same search: “All my life I’ve been looking for one thing, the essence of flight.” …
The court’s sensibility favored Brancusi. In its decision of November 1928, drafted by Judge Waite, the court held:
The object now under consideration … is beautiful and symmetrical in outline, and while some difficulty might be encountered in associating it with a bird, it is nevertheless pleasing to look at and highly ornamental, and as we hold under the evidence that it is the original production of a professional sculptor and is in fact a piece of sculpture and a work of art according to the authorities above referred to, we sustain the protest and find that it is entitled to free entry.
Judge Waite’s decision was seen as a victory not only for Brancusi but also for avant-garde art, because it dismissed the Olivotti requirement and recognized the importance of a new school that “portray[ed] abstract ideas rather than … imitate natural objects.” …
But the decision’s focus on the decorative qualities of the Bird made the ruling just as perishable as the standard in the 12-year-old one it replaced. And its reliance on the judges’ personal taste made its application perhaps more arbitrary and restrictive. Many of the works that made the renown of Duchamp, the chaperon of the Bird on its trip to New York and one of its staunchest defenders, would not have passed the test, for example. Duchamp’s “ready-made” sculptures of a bottle rack (Bottle Dryer, 1914) and a urinal (Fountain, 1917), objects he borrowed from daily life and, with more than a hint of irony, labeled works of art, would not have satisfied Judge Waite’s taste for the “beautiful,” “symmetrical,” and “ornamental.”
The Brancusi decision may have done away with the requirement that sculptures must be figurative to be art, but it took years for customs law to shed other unreasonable limitations on the free import of artwork. In 1931, tapestries were deemed dutiable because they were made of wool – the material determined the artistic merit. In 1971, the customs court found that six carved door panels destined for a church were dutiable because, as part of the doors, they were utilitarian objects. It wasn’t for 61 years, until the Harmonized Tariff Schedule of 1989, that customs law allowed free entry to works that are both artistic and functional.
Bird in Flight, Brancusi, & US Customs law Read More »
From Daniel A. Nathan’s “The Big Fix” (Legal Affairs: March/April 2004):
THE BLACK SOX SCANDAL was the sports crime of the 20th century. In a complicated and poorly conceived and executed conspiracy, several prominent Chicago White Sox ballplayers teamed up with gamblers to lose the 1919 World Series to the Cincinnati Reds. …
Of those artfully deceitful manipulators, Arnold Rothstein was the most skillful, a criminal kingpin who had his hand in all manner of illicit endeavors. Known as “the Big Bankroll” and “the Great Brain,” Rothstein helped invent organized crime, and his influence survived his death in 1928. …
There is no denying that Rothstein was clever. A former pool shark, Rothstein managed to graduate from being a small-time bookmaker to what one historian describes as an important “intermediary between the underworld and upper world of New York.” He established successful gambling houses in New York City and Saratoga (then, as now, a popular summer resort town for the well-to-do, especially for those who like to play the ponies) and political connections with Tammany Hall. Rothstein, Pietrusza notes, “pretty much invented the floating crap game,” the illicit diversion later made famous by the Broadway musical Guys and Dolls, on his way to becoming “America’s most notorious gambler.” He was a bootlegger, a labor racketeer, a racetrack owner, a real estate magnate, a bail bondsman, a loan shark, a fence, and, according to [David Pietrusza, author of Rothstein: The Life, Times, and Murder of the Criminal Genius Who Fixed the 1919 World Series], the “founder and mastermind of the modern American drug trade.”
Arnold Rothstein, criminal kingpin Read More »
From Michael Erard’s “The Strange Tale of Charlie Smoke” (Legal Affairs: November/December 2002):
… Social Insurance Number – the Canadian equivalent of a Social Security Number …
US SSN = Canadian SIN Read More »
From Patrick Keefe’s “Camera Shy” (Legal Affairs: July/August 2003):
One extralegal solution is a project called iSee. Launched several years ago, iSee is an online interactive map of the locations of surveillance cameras in Manhattan. To use iSee, you simply open the map of Manhattan and double-click on your point of departure and your destination. After a few moments of computation, iSee generates the “path of least surveillance.”
iSee can be accessed through the website of the organization which created it, the so-called Institute of Applied Autonomy. IAA is a collective of artists, engineers, and scientists who design technologies for the “burgeoning market” of “cultural insurrection.” The organization presents itself as a tech-savvy civil libertarian answer to the Defense Advanced Research Projects Agency, a shadowy R&D wing of the Pentagon. DARPA has recently been in the news for developing the Terrorist Information Awareness project, headed by John Poindexter, which would monitor the everyday transactions of American citizens. Whereas DARPA uses what IAA calls “tools of repression” to take your autonomy away, IAA answers with another set of tools that are intended to give you your autonomy back. …
iSee: online map of CCTVs in Manhattan Read More »
From Patrick Keefe’s “Camera Shy” (Legal Affairs: July/August 2003):
In London, a city even more intensively scrutinized by closed-circuit television cameras than New York, citizens can at least retrieve copies of footage taken of them through a provision in Britain’s Data Protection Act. Americans have no such legal recourse. …
In Britain, you can see footage of you captured by CCTV Read More »
From Brian Montopoli’s “The Queue Crew: Waiting in line for a living” (Legal Affairs: January/February 2004):
ON CAPITOL HILL, a placeholder is someone paid by the hour to wait in line. When legislative committees hold hearings, they reserve seats for Congressional staffers, for the press, and for the general public. The general-public seats are the only ones available to the so-called influence peddlers, the Washington lawyers and lobbyists whose livelihood depends on their ability to influence legislation. These seats are first come, first served, which is where the placeholders (also called “stand-ins” or “linestanders”) come in. Since most lobbyists and lawyers seeking to rub shoulders with lawmakers don’t have time to wait in line themselves, they pay others to do it for them.
Rather than use an independent contractor, most influence peddlers secure placeholders through one of the two companies that control about 80 percent of the market: Congressional Services Company and the CVK Group, both of which have rosters of on-call placeholders at the ready. Most of the time, placeholders are asked to wait for just a few hours, often arriving around 5 a.m. to wait for hearings scheduled for 10 a.m. If seats are in great demand, however, placeholders can be asked to get in line several days in advance. Congressional Services charges its clients $32 to $40 per hour for each placeholder, and the placeholders themselves make $10 to $15 an hour. …
For the sake of logistics and appearances, the lines usually form outdoors and stay there until a few hours before a hearing. …
Today, however, most placeholders are not nimble students out to earn a little spending money but older men and women trying to make ends meet. Jim Keegan is one of the “Van Gogh veterans,” a group of placeholders discovered by Congressional Services in 1998 when they were standing in line to get coveted free tickets to the Van Gogh exhibit at the National Gallery of Art. …
Now he said he has time to pursue his interests and get paid. “I’ll probably make $2,000 to $3,000 in a good month,” he said. “That’s more than I made at my old job.”
There is a collegial atmosphere among the placeholders – if you leave to go get something to eat, you aren’t going to lose your spot – but simple tasks like going to the bathroom present challenges. During the day, placeholders can go into the Rayburn Building, but after hours they have to make their way over to the public bathrooms at Union Station. Getting sleep is also a problem. Since the lines form on public sidewalks, placeholders are technically not allowed to sit down, and though the Capitol Hill police often ignore them, there are evenings when an overzealous officer will repeatedly wake them up and tell them to stand. …
Once, a group upset over banking regulations brought busloads of protesters to a hearing, only to discover that they wouldn’t be able to get in, thanks to the placeholders. A scuffle ensued, but the placeholders held their ground.
In general, however, most staffers and politicians don’t even notice the placeholders they pass on their way to work. …
Since hearings can be rescheduled or closed to the public at the last minute, the placeholding services insist on getting paid regardless of whether their clients succeed in getting in. Keegan and Herzog’s long wait, for example, ended before they could pass along their spots to their clients: The housing hearing was cancelled because of partisan infighting, and after two days and 20 hours of waiting, the placeholders were sent home on Tuesday at 6:30 p.m.
The next morning, however, after showers and a change of clothes, many of them were back, this time to wait for a healthcare hearing before the Commerce Committee. When I arrived at the Rayburn Building at 9 a.m., over 70 people were waiting to get into the hearing, and by 10, when it was scheduled to start, there were more than 200. The line began around the corner from the hearing room and snaked past elevator banks and Congressional offices. At the front were mostly placeholders, among them a bored-looking young man with red sneakers and a hat worn sideways and a woman in her late 30s wearing a frayed sweatshirt that read “OJ SIMPSON: JUICE ON THE LOOSE.” …
Thirty minutes before the hearing began, the clients started showing up. The placeholders were identified by placards or by assistant managers who worked the line. A bald white man in his 40s with a yellow tie and an expensive suit took his spot and thanked his placeholder. (Congressional rules prohibit tipping.)
Your job? Waiting in line for others. Read More »
From Daniel Brook’s “A History of Hard Time” (Legal Affairs: January/February 2003):
Dickens wasn’t the first European intellectual who had crossed the Atlantic to visit Eastern State Penitentiary. A decade earlier, Alexis de Tocqueville had been sent by the French government to study the Philadelphia prison. …
What drew the attention of Americans and Europeans was an innovative method of punishment being pioneered at the prison called solitary confinement. While the practice had roots in medieval monasteries, where it was used to punish disobedient monks, solitary confinement came to prominence as a form of criminal punishment in the United States soon after the Revolution. …
In colonial America, capital punishment had been common, and not just for murder – burglary and sodomy could earn an offender the death penalty as well. For less serious offenses, criminals were generally subjected to physical punishments meted out on the public square. In a frontier nation of small towns, public embarrassment was seen as the key to deterring crime. Physical punishment, whether in the form of the stockade or the whipping post, was combined with the psychological punishment of being shamed in front of the community. Jails existed, but they were used mainly to hold criminals before trial and punishment. There were no cells and few rules: Men and women were housed together, and alcohol was often available. …
In 1787, at a soiree held in Benjamin Franklin’s living room, [Dr. Benjamin Rush of Philadelphia, a signatory of the Declaration of Independence & widely regarded as America’s foremost physician] presented an essay titled, “An Enquiry Into the Effects of Public Punishments Upon Criminals, and Upon Society.” Rush declared that “crimes should be punished in private, or not punished at all.” He claimed that public punishment failed to rehabilitate the criminal and risked letting the convict become an object of community sympathy. In lieu of public, physical punishments, Rush endorsed the creation of a “house of repentance.” Grounded in the Quaker principle that each individual is blessed with “Inner Light,” Rush envisioned a place of anonymity, solitude, and silence, where prisoners could dwell on their crimes, repent, and return rehabilitated into society. …
In 1821, the reformers finally convinced the Pennsylvania legislature to approve funding for Eastern State Penitentiary, which would be the largest public building in the country; with a price tag of nearly $800,000, it was likely the most costly one as well. No expense was spared: To prevent disease, each cell in the new prison was equipped with a toilet, a rare luxury at the time. When the penitentiary opened in 1829, President Andrew Jackson was still using an outhouse on the White House lawn.
The principles of the penitentiary system – silence, solitude, surveillance, and anonymity – were incorporated into the architectural plan. Eastern State was designed by John Haviland, a young architect, who proposed a hub-and-spokes model that allowed for constant surveillance. Inmates were housed in 8-by-12-foot cells arranged along a series of cellblocks radiating out from a central observation tower.
Each prisoner remained in his cell at all times, save for a brief daily exercise period held in an individual pen adjoining each cell. Prisoners ate their meals in their cells and did small-scale prison labor there like shoemaking. On the rare occasions when prisoners were allowed to leave their cells, they were prevented from interacting with other prisoners by hoods they were forced to wear to protect their anonymity. They were also forced to use numbers instead of names for the same reason. Silence was maintained at all times in the prison, and reading the Bible was the only activity other than labor that was permitted. Reformers believed that cutting inmates off from the world would foster meditation that would lead to rehabilitation, so visits from family or friends were prohibited. On average, inmates spent two to four years alone in their cells, underneath a single round skylight, known in the prison as the “eye of God.”
The expense of the building limited its influence in the United States, but Eastern State was widely copied in Europe and even in Latin America and Japan, where economic conditions made the model more attractive. Over 300 prisons were built on Eastern States’ hub-and-spokes model, in cities as diverse as London, Paris, Milan, St. Petersburg, and Beijing. Architectural historians consider the hub-and-spokes penitentiary to be the only American building type to have had global influence until the first skyscrapers began to rise in Chicago and New York in the 1880s. …
Dickens, who also interviewed prisoners at Eastern State, was far more skeptical. In his travelogue, American Notes, he described Philadelphia’s system of “rigid, strict, and hopeless solitary confinement” as “cruel and wrong.” …
Dickens didn’t accept that the penitentiary represented human progress over the days of floggings on the public square, or as his prose suggested, even the medieval torture chamber. “I hold this slow and daily tampering with the mysteries of the brain to be immeasurably worse than any torture of the body.” …
In New York, at the Auburn prison near Syracuse and later at Sing Sing in Westchester County, a modified system of solitary confinement was being put into practice. While inmates spent their nights in solitary cells, they worked together silently in a common area during the day. This allowed wardens to set up profitable prison industries that could offset the costs of prison construction. …
Despite this vehement defense of the solitary system, in the period after the Civil War, the regimen at Eastern State was slowly abandoned. … Without enough funding to keep the system running, inmates were frequently doubled up in cells. In 1913, the solitary system was officially abandoned. Solitary confinement became a short-term punishment for misbehaving prisoners rather than the prison’s standard operating procedure. …
More than half of all U.S. prisons in use today were built in the past 25 years, to house a prison population that has risen almost 500 percent over roughly the same period. The United States has the highest incarceration rate in the world. In raw numbers, it has more prisoners than China, a country with over four times as many people. …
Supermax prisons – high-tech, maximum-security facilities – were the answer politicians and corrections departments were looking for to solve the problem of increasing violence in prisons. Following Marion’s lead, corrections departments around the country began building supermax prisons, or adding supermax wings to their existing prisons to handle the growing number of violent prisoners who could not be controlled in the traditional prison system. Today there are 20,000 supermax inmates in the United States, roughly 2 percent of the total prison population, though in some states the proportion is much higher: In Mississippi, 12 percent of prisoners live in supermax units.
The system of punishment in supermax units resembles nothing so much as the system of punishment pioneered at Eastern State. The Pelican Bay Security Housing Unit, which cost California taxpayers a quarter of a billion dollars, is perhaps the most notorious supermax. From the air it looks like a high-tech version of the Philadelphia prison: Its hub-and-spokes design is clearly descended from John Haviland’s 19th-century architectural plan. Inmates in the SHU (known as “the shoe”) are kept in their cells close to 24 hours a day. As at Eastern State, inmates eat in their cells and exercise in isolated attached yards. …
Dr. Stuart Grassian, a Harvard Medical School psychiatrist who was given access to SHU inmates to prepare for providing expert testimony in lawsuits against the California Department of Corrections, has concluded that the regimen in security housing units drives prisoners insane, and he estimates that one-third of all SHU inmates are psychotic. He writes of what he calls “the SHU syndrome,” the symptoms of which include self-mutilation and throwing excrement.
Dr. Terry Kupers, a psychiatrist who has interviewed supermax inmates, writes that a majority of inmates “talk about their inability to concentrate, their heightened anxiety, their intermittent disorientation and confusion, their experience of unreality, and their tendency to strike out at the nearest person when they reach their ‘breaking point.’ ” Even those inmates who don’t become psychotic experience many of these symptoms. Those least likely to become mentally ill in solitary confinement are prisoners who can read, because reading prevents the boredom that can lead to insanity. (The human psyche appears not to have changed since the days of Eastern State, when an inmate told Alexis de Tocqueville that reading the Bible was his “greatest consolation.”) Because roughly 40 percent of U.S. prisoners are functionally illiterate, however, reading can provide solace and sanity to only a fraction of those behind bars.
The history of solitary confinement Read More »
From Dashka Slater’s “Lights, Camera, Lockdown” (Legal Affairs: May/June 2003):
The first two Alcatraz films, Alcatraz Island and The Last Gangster, arrived in theaters in 1937; the most recent, Half Past Dead, came out last November. In the 65 years in between, Alcatraz has been the subject of some two dozen movies and has made guest appearances in many more. There have been prison movies, horror movies, comedies, romances, action films, cartoons, and even porn flicks set on Alcatraz. It’s rare for a Hollywood set to last even a few weeks after a film is complete, but the prison is so popular with filmmakers that a meticulous replica of its cellblock, first created for the Clint Eastwood film Escape From Alcatraz, has resided on a Culver City soundstage for more than 20 years. It has provided penal ambience for hundreds of movies, television shows, commercials, and music videos. …
THE FEDERAL PENITENTIARY AT ALCATRAZ opened on August 22, 1934. It was to be a prison like no other, a high-tech, escape-proof, super-maximum warehouse for the nation’s most incorrigible bad guys. …
The secrecy had been designed to deflate the celebrity reputations of gangsters like Al Capone, who had enjoyed special treatment at other prisons. James A. Johnston, the prison’s first warden, believed that egoism was the chief failing of recidivists. His prescription was total isolation and total anonymity. At Alcatraz, he promised, Capone and his ilk would become “forgotten men.” …
The articles emphasized the prison’s harshness and brutality, chronicling its excruciating rule of silence, which required prisoners to stay mute except during a two-hour recreation period on Sundays, and describing the dank “Spanish dungeons” where prisoners were sent for disobeying rules.
Many of these accounts were embellished, and some of the more lurid tales were pure fabrications. Alcatraz was tough but not barbaric. Inmates were guaranteed the basics of food, shelter, clothing, and medical attention; everything else – work, exercise, visitors – had to be earned. Minor infractions – failing to finish the food on your plate, talking while in the cellhouse, sassing a guard – brought a swift reduction in privileges. More serious violations, like taking a swing at a guard, sent prisoners to the chilly darkness of “the hole.” Particularly obstreperous prisoners were hosed down with cold water from the bay, a practice that earned the warden the nickname “Saltwater” Johnston.
Alcatraz was hardly a country club, but it was still one of the better-run prisons in the United States. Inmates had their own cells, an improvement over bunking with another con. These five-by-nine-foot cells were cramped, but each had its own light and running water, and prisoners could order as many books as they wanted from the prison library. The cellblock was kept at a comfortable 70 degrees and the food was considered some of the best in the prison system. …
Throughout the ’30s, ’40s, and ’50s, films like Train to Alcatraz, Prison Train, King of Alcatraz, San Francisco Docks, and The House Across the Bay picked up the mythology of the “Inside Alcatraz” accounts and ran with it, depicting the prison as a place that made even hardened cons quake in their leg irons. …
… fewer than 300 prisoners [were] kept there at any one time …
The island’s reputation was increasingly out of step with the times, and the prison was facing more tangible problems as well. After years of exposure to the salt air, the fortress was literally falling apart, and the cost of repairs was prohibitive. The prison closed in 1963 …
IN 1972, AFTER LANGUISHING IN BUREAUCRATIC LIMBO for nearly a decade, Alcatraz became a national park, a move that allowed Hollywood to begin making movies on the Rock itself. …
The Park Service originally thought interest in the prison would peter out within five years. Instead, the park receives 1.5 million visitors a year, about five times as many as Antietam or Little Big Horn and nearly as many as Mt. Rushmore. …
Hollywood is responsible, in large part, for making the former penitentiary recognizable as a prison rather than just a decaying collection of empty Depression-era buildings. Escape From Alcatraz brought fresh coats of paint to the mess hall and D block, as well as the yellow stripes (which never existed when the prison was open) that now run down the main cellhouse corridor. Murder in the First funded the restoration of a guard tower on the dock, and The Rock paid for the removal of hazardous waste. Leftover Hollywood props – metal detectors, cell cots, benches, even pillows – have stayed on as permanent adornments, giving tourists a sense of what the penitentiary was like when it was operating. Over time it has become difficult to distinguish Hollywood’s Alcatraz from the real one.
Alcatraz: reality & Hollywood Read More »
From Ross Guberman’s “Home Is Where the Heart Is” (Legal Affairs: November/December 2004):
ABOUT 50 MILLION AMERICANS BELONG TO HOMEOWNER ASSOCIATIONS, also known as HOAs or common-interest developments, which are composed of single-family homes, condominiums, or co-ops. Four out of five new homes, ranging from starter homes to high-rise apartments to gated mansions, are in one of the nation’s 250,000 HOAs. However they look or whomever they cater to, HOAs impose the same obligations: If you want to buy a property in an HOA development, you must join the HOA, allow a board you help elect to manage shared grounds and other public spaces, pay regular dues and any “special assessments” for upkeep or other costs, and obey a host of quality-of-life rules, even if they’re added after you move in.
In return, the HOA keeps the welcome sign painted, the sidewalk cracks filled, and the flower beds fresh. It may also provide streets, parks, playgrounds, security, snow removal, and utilities that were once the province of local government. But the HOA does more than beautify the neighborhood and preserve property values. It is often the sole driving force behind the Halloween parades and holiday parties that are increasingly rare in an age of bowling alone.
Although structured as nonprofit corporations, HOAs operate as private governments. An HOA can impose fines on those who flout its quality-of-life policies, just as a municipality can penalize those who violate its zoning, antismoking, or noise-control laws. An HOA also levies dues and assessments that are as obligatory as taxes and sometimes less predictable. In exerting these quasi-political powers, HOAs represent one of the most significant privatizations of local government functions in history. …
About half the states allow “non-judicial foreclosures” if owners lapse on their dues. Typically, the HOA’s collection attorney places a lien on the property and announces its new legal status in a local newspaper. The home is then auctioned. Homeowners get none of the due-process protections they could use to ward off other creditorsâ€â€no right to a hearing and no right to confront their HOA board.
Even in states that require court approval for an HOA foreclosure, the HOA nearly always wins. Under current law, any unpaid dues, no matter how small, can be grounds for foreclosure, particularly once the amount of the delinquency is swelled with interest and fines.
… According to a 2001 study of foreclosures in California by Sentinel Fair Housing, a homeowner advocacy group, when HOAs foreclose, the typical homeowner is $2,557 in arrears. When banks or municipal governments foreclose, by contrast, the typical homeowner owes $190,000 in delinquent payments or back taxes.
The tyranny of HOAs Read More »