Tuesday, January 31, 2012
JURIST Senior Editor Edward SanFilippo, University of Pittsburgh School of Law Class of 2013, argues that alternative business models can address societal changes in the US... (His opinions are not intended to represent those of JURIST)
From this unhappiness, another quiet movement seems to be growing, a desire to "just get away from it all." For those seeking an extreme solution, intentional communities may provide both the structure and legal protection necessary for a fresh start. According to the Fellowship for Intentional Community, "Intentional Community is an inclusive term for ecovillages, co-housing communities, residential land trusts, communes, student co-ops, urban housing cooperatives, intentional living, alternative communities, cooperative living, and other projects where people strive together with a common vision." Intentional communities are often sought out as a means to join those with "common spiritual or political convictions" and "to find a friendly, caring place to live, away from the isolation of suburban life." According to the Fellowship, thousands of these communities exist around the world in both rural and urban areas, with nearly 2000 in the US alone. As a legal entity, intentional communities have a variety of options for organization; the focus here will be on the most extreme, 501(d) organizations.
According to the tax code, 501(d) organizations are "religious or apostolic associations or corporations, if such associations or corporations have a common treasury or community treasury, even if such associations or corporations engage in business for the common benefit of the members." Like partnerships, limited liability companies (LLC) or S corporations, in a 501(d), "net profits are divided among all members pro rata to their individual tax returns." Unlike these business entities, 501(d) organizations have fewer restrictions on membership and structure, plus some significant benefits as a tax-exempt entity. Unlike a 501(c)(3), a 501(d) has fewer overall restrictions. For example, a 501(d) can engage in any kind of business and all income is free from taxation at the entity level. Additionally, the assets of a 501(d) can be split between the members after dissolution and the organization can maintain its tax-exempt status even while engaging in political activity.
This legal structure was first proposed in Congress as a means of protecting monasteries and other less common religiously based, residential institutions from unfair taxation. The case law relating to 501(d) organizations has been almost entirely focused on tax issues, both in terms of exemption and income. The most recent case is Stahl v. US. However, the exemption requirements are most fully described in the 1983 Ninth Circuit opinion in Kleinsasser v. US:
The only requirements for the exemption are that there be a common treasury, that the members of the organization include pro rata shares of organization income when reporting taxable income and, implicitly, that the organization have a religious or apostolic character. Once this requirement of form is fulfilled, the exempt organization is unlimited as to function. It can farm, ... or engage in manufacturing, or any other business or combination of businesses. It is definitionally impossible for a §501(d) organization to have unrelated trade or business income. If the organization had income that it failed to allocate to its members, it would simply lose its exemption altogether.
Despite these benefits, forming a 501(d) organization creates several challenges, both legal and social. On the legal side, the nature of a 501(d) limits personal autonomy and wealth accumulation. First, most major decisions for the organization must be made collectively, or at least somewhat democratically. Additionally, all members must understand their legal rights individually and within the organization, and their options/limitations if they desire to leave the community. Second, all members' income, even that earned outside the community, must be split equally among the membership. A third legal issue, which carries over into the social issues, is that a group must come together with common social values and have a common religious or spiritual worldview to qualify for the apostolic designation and wish to live simply and collectively for a long-term commitment. In this sense, one of the most challenging aspects may be finding like-minded, hardworking, adventurous families and individuals.
Another challenge is the generation of income. What types of businesses will a community choose to develop? Where will it find capital and investment opportunities to finance these business endeavors, and who will it turn to for professional assistance? Will a community choose a rural or urban lifestyle, and what benefits or challenges are associated with each choice, particularly in reference to business options? None of these are insurmountable challenges, but they must all be addressed to create an environment that facilitates the success of any intentional community.
The most common criticism of this option is that it promotes socialism, or that it is just a utopian, hippy ideal that cannot exist in reality. The reality is, however, that thousands of intentional communities already exist, whether structured as 501(d)s or something else, and their business ventures coexist alongside more 'capitalistic' business organizations. In any event, it seems unlikely that a small segment of society choosing alternative living arrangements will alter the market values of the entire nation; indeed, this is not even the intent. Instead, those who truly want to live off the land in a communal environment, away from the political circus, have the legal protection of a 501(d) organization if they so choose.
Edward SanFilippo, is the Head of JURIST's professional commentary services. He graduated from the San Diego State University, where he earned degrees in religious studies and political science. His interests focus on issues of development, social change and social movements, the intersection between law and religion, human rights and the environment.
The opinions expressed herein are solely those of the author and do not necessarily represent those of JURIST or any other organization.
Suggested citation: Edward SanFilippo, A Legal Alternative to Modern Living in a Changing America, JURIST - Dateline, Jan. 31, 2011, http://jurist.org/dateline/2012/01/Edward-SanFilippo-intentional-community.php.
Monday, January 30, 2012
JURIST Assistant Editor Kimberly Bennett, University of Pittsburgh School of Law Class of 2014, argues that although it will be described as judicial activism, same-sex couples must be granted the same rights as opposite-sex couples under the Equal Protection Clause of the Fourteenth Amendment... (Her opinions are not intended to represent those of JURIST)
Historically, the Supreme Court has ruled that laws arbitrarily discriminating against a specific group are unconstitutional. In Loving v. Virginia, the Court established that state laws banning interracial marriage were unconstitutional, as they lacked a rational purpose, were racist and perpetuated white supremacy. Accordingly, the traditional norms for justifying state miscegenation laws were invalidated and these discriminatory laws were struck down. In Reed v. Reed, the Supreme Court ruled that laws preferring men to women, based on arbitrary legislative choice, were forbidden by both the Equal Protection Clause and the Due Processes Clause. Five years later, in Craig v. Boren, the Court established an "intermediate" or "heightened scrutiny" standard for cases involving discrimination against women. To pass scrutiny and be held constitutional under this standard, discriminatory laws and policies must be found to be supported by an "exceedingly persuasive justification" that is "substantially related to an important governmental objective," and it cannot be found to be based on stereotypes about gender. Originally excluded from equal protection, this case effectively extended the Equal Protection Clause to women.
Recently, US courts have made significant steps toward the protection of gays and lesbians, indicating that there has been a slow movement toward their inclusion as a protected class under the Equal Protection Clause. In Romer v. Evans, the Court ruled that an amendment to the Colorado Constitution [PDF], which stated that there was no protected status based on sexual orientation, was held to be unconstitutional because it violated the Equal Protection Clause for lack of a "legitimate legislative end." In Lawrence v. Texas, the Court stated that, "[m]oral disapproval of this group ... is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause." Based on these cases, the rule is clear: if a law is intended to infringe on the rights of a certain group, there must be a rational and legitimate governmental interest to justify it.
The Fourteenth Amendment does not specify any groups in particular that should be protected. Instead, the Constitution provides a framework to determine which rights are fundamental, and dictates that these rights shall not be denied to anyone within its jurisdiction. In Zablocki v. Redhail, the Supreme Court established marriage as a fundamental right recognized under the Equal Protection Clause. It further established that courts should apply a rigorous level of scrutiny in cases dealing with fundamental rights. Any scrutiny regarding the constitutionality of banning same-sex marriage reveals that the reasons for its ban are based on outmoded values that cannot be tied to a rational basis or legitimate governmental interest. It is the courts that must break with discriminatory views, as they have done in the past.
Although it is often described as judicial activism, it is essential that judges use their power to make decisions in spite of popular opinion or the approval of public officials. Following Marbury v. Madison, it has been the province of the courts to determine what the Constitution permits. This decision-making power is crucial to our democratic system, as a balance and division of powers is essential to its maintenance. It is the duty of the courts to protect the rights of the minority, and prevent the tyranny of the majority. Checks and balances created by the Constitution must function in the way they were intended. Courts should remain steadfast in their exercise of proper judicial discretion. Denying a fundamental right to a minority is not only contrary to our values and jurisprudence, it is a threat to our democratic system. Judicial discretion does not mean that courts can simply rule as they please. Rather, judicial discretion charges courts with the burden of making constitutionally appropriate decisions based on precedent.
In terms of equal protection, the Supreme Court has historically been at the forefront of progressing our laws to reflect and create necessary changes in societal values, with some of the most notable cases being Brown v. Board of Education and Roe v. Wade. As long as courts rule in accordance with the Constitution, popular opinion should have no impact on their decisions. Marbury v. Madison has provided the courts with the authority to interpret and apply the Constitution. Accordingly, the Ninth Circuit must adhere to its duty as a reviewer and protector of minority rights. A provision, like Proposition 8, cannot pass through the type of rigorous scrutiny that is required in a case where a fundamental right is at stake. If the courts are to uphold Proposition 8 as constitutional under the Fourteenth Amendment, they must provide a rational and legitimate reason for doing so, as decided in Romer, Reed, Loving and Lawrence. The Ninth Circuit must use its judicial discretion in the form of equal rights activism to provide same-sex couples the rights guaranteed to opposite-sex couples.
Kimberly Bennett is an Assistant Editor for JURIST's Social Media service. She holds a undergraduate degree in Spanish and Political Science, and a Certificate in Latin American Studies from the University of Pittsburgh. She is studying international human rights and civil rights law at the University of Pittsburgh School of Law.
The opinions expressed herein are solely those of the author and do not necessarily represent those of JURIST or any other organization.
Suggested citation: Kimberly Bennett, Judicial Activism and the Recognition of Same-Sex Marriage, JURIST - Dateline, Jan. 30, 2012, http://jurist.org/dateline/2012/01/kimberly-bennett-gay-rights.php.
Thursday, January 26, 2012
JURIST Guest Columnist Joshua Hausman, University of Pittsburgh School of Law Class of 2012, is a Managing Editor for the University of Pittsburgh Law Review and is a Teaching Fellow in the Marshall-Brennan Constitutional Literacy Project. He discusses the Supreme Court's decision in United States v. Jones and its possible ramifications on Fourth Amendment search jurisprudence...
The case presented defendant Antoine Jones, who in 2007 received a life sentence following his conviction for conspiracy to distribute, and possession with intent to distribute, cocaine and cocaine base in violation of federal law. At his trial, the government introduced as evidence data collected over a period of nearly a month which had been obtained through the use of a GPS tracking device. The GPS tracker had been placed on Jones's Jeep Grand Cherokee while it was parked in a public parking lot, and the battery on the tracker was replaced once during the period of surveillance in the same fashion. The data collected, consisting of Jones's location and movements, was used to connect Jones to a "stash house" containing the narcotics. However, the placement of the tracker and the surveillance that followed was conducted without a valid warrant. The US Court of Appeals for the District of Columbia Circuit reversed his conviction on the basis that the admission of this evidence, obtained without a warrant, violated the Fourth Amendment and the locational data should not have been admitted at trial.
At issue on appeal was whether the use of the GPS tracking device was a search to which the protections of the Fourth Amendment would apply in the first place. The Supreme Court agreed with the DC Circuit that a Fourth Amendment search had occurred, though the majority reached this conclusion in a rather unusual way. Justice Scalia, writing for the majority, reasoned that the placement and use of the GPS tracker on the automobile constituted a search because "[t]he Government physically occupied private property for the purpose of obtaining information." The surprise in this reasoning stems from the fact that, since 1967, courts have relied principally on the reasonable expectation of privacy test to determine whether a Fourth Amendment search occurs. Under that formulation, the protections of the Fourth Amendment apply whenever a person has (1) exhibited an actual expectation of privacy that (2) society can accept as reasonable.
By instead basing its opinion on the physical placement and presence of the GPS tracking device on the automobile, the Court breathed new life into the "common-law trespassory test," which, as emphasized by Justice Scalia, survived the ruling in Katz v. United States. Under this formulation, in addition to the reasonable expectation of privacy analysis, a Fourth Amendment search may occur in situations of "government trespass upon the areas ('persons, houses, papers, and effects') [the Fourth Amendment] enumerates." The government trespassed upon Jones's property by the physical act of placing and maintaining the GPS tracking device to collect information, and thus a Fourth Amendment search had occurred.
The holding in Jones is a good one, at least to the extent that it marginally expands the scope of surveillance methods to which the protections of the Fourth Amendment will apply. On the other hand, the holding itself is not quite a knock-out victory for the Fourth Amendment. As explained by Professor Orin Kerr on The Volokh Conspiracy, the Court did not actually hold that a warrant is required before a GPS device may be installed and used to track an automobile; it only held that a Fourth Amendment search occurred in such a situation. By failing to explicitly state that a warrant is required, the majority opinion seems to at least leave open the possibility that the placement and use of a GPS tracking device on an automobile may still be a reasonable search in some circumstances, even absent a valid warrant.
At the heart of the matter in Jones, however, is whether and to what extent an individual may reasonably expect to be free from surveillance given the ease with which it can be conducted and the extensiveness of the surveillance modern technology allows. By relying on the trespass theory, the majority let an opportunity to deal with this issue slip away, though Justice Scalia clearly acknowledged that the reasonable expectation of privacy test remains the appropriate analysis when a physical trespass upon property has not occurred. He even concedes that, although purely visual observation of an individual on public roads is constitutionally permissible, it may be the case that similar observation accomplished through electronic means is an invasion of privacy. The trespass analysis does not preclude such a finding.
The majority was able to reach a result favorable to privacy rights without rocking the Fourth Amendment boat too much. However, the concurring opinions show that at least five members of the Court are ready to tackle the issue at the heart of Jones now, and many on the Court are clearly contemplating the effect of the world of modern surveillance on the protections of the Fourth Amendment. During oral arguments last November, the character Big Brother from George Orwell's 1984, a dystopian novel about a society utterly crushed under the weight of an all-seeing, all-powerful and all-controlling government, was referenced six times. Justice Alito, concurring in Jones, offers a brief summary of the state of affairs:
Recent years have seen the emergence of many new devices that permit the monitoring of a person's movements. In some locales, closed-circuit television video monitoring is becoming ubiquitous. On toll roads, automatic toll collection systems create a precise record of the movement of motorists ... Many motorists purchase cars that are equipped with devices that permit a central station to ascertain the car's location at any time ... [C]ell phones and other wireless devices now permit wireless carriers to track and record the location of usersand as of June 2011, it has been reported, there were more than 322 million wireless devices in use.Although Justice Alito believes that the best approach to dealing with the privacy issues these new technologies present is legislative rather than judicial, he had no problem utilizing the reasonable expectation of privacy test to reach the same result as Justice Scalia's majority: the surveillance conducted on Jones was a Fourth Amendment search despite the fact that the surveillance occurred in a public setting. Though individuals may expect to be subjected to "relatively short-term monitoring" on public streets, the longer term monitoring of the GPS device at issue infringed upon Jones's privacy expectations. "[S]ociety's expectation has been that law enforcement agents and others would notand indeed, in the main, simply could notsecretly monitor and catalogue every single movement of an individual's car for a very long period." In short, despite the fact that Jones's movements were monitored in public, it was the extensive nature of the surveillance, made possible by modern technology, which resulted in a Fourth Amendment violation. Justice Alito's concurrence was joined by Justice Ginsburg, Justice Breyer and Justice Kagan.
Justice Sotomayor, who joined the majority because she believes in the trespassory test as an "irreducible constitutional minimum," also appears ready to reinforce an individual's right to privacy from the use of modern surveillance technologies. She emphasized that physical trespass will be unnecessary in many other cases of governmental surveillance. "With increasing regularity, the Government will be capable of duplicating the monitoring undertaken in this case by enlisting factory- or owner-installed vehicle tracking devices or GPS enabled smartphones." She agrees with Justice Alito that longer term GPS tracking will violate a reasonable expectation of privacy, but goes one step further. Due to the very nature of GPS tracking, which can reveal intimate personal details about an individual based on locations that individual may choose to visit, even short-term tracking is suspect from a Fourth Amendment perspective. Justice Sotomayor would even go so far as to reconsider the principle that an individual cannot have a reasonable expectation of privacy in information voluntarily disclosed to third parties.
Prior Supreme Court cases, sometimes referred to as the "beeper cases," have upheld the use of location tracking "beepers" to monitor defendants on public roadways from Fourth Amendment challenges. The Court has explicitly stated in prior cases that "[a] person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another." The concurrences in Jones show that changes may be in store. Five justices now believe that long-term GPS tracking in the public sphere, though "long-term" is left undefined, violates an individual's reasonable expectation of privacy. Justice Sotomayor believes that the very nature of GPS tracking can make even short-term surveillance subject to the Fourth Amendment, and those joining Justice Scalia's majority appear prepared to at least entertain the notion that such surveillance may, in some instances, infringe privacy in a public setting.
With modern technology making constant and complete surveillance of an individual possible as soon as that individual chooses to step out of his or her front door, it seems that it is indeed time to reevaluate when, and from what, a person's privacy is to be protected by the Fourth Amendment. The Court appears ready to deal with this issue, which will almost certainly be making another appearance before the Court in the near future. "The board is set, the pieces are moving. We come to it at last ... the great [Fourth Amendment] battle of our time."
Joshua Hausman holds an undergraduate degree in Political Science with a minor in Administration of Justice from the University of Pittsburgh. His legal studies have focused on constitutional law and individual liberties. He is the President of the Federalist Society chapter at the University of Pittsburgh.
Suggested citation: Joshua Hausman, Setting the Stage for Big Changes to Fourth Amendment Searches, JURIST - Dateline, Jan. 26, 2012, http://jurist.org/dateline/2012/01/joshua-hausman-jones.php.
Sunday, January 22, 2012
JURIST Guest Columnist Perveen Ali, Ph.D. candidate in the Department of Law at the London School of Economics and Political Science, is currently researching issues of international refugee and human rights law. Here she discusses the challenges Iraqi refugees face in returning home safely and with dignity...
Within the framework of the international refugee protection regime, the traditional "durable solutions" sought for refugees include local integration in their country of asylum, resettlement to a third country or voluntary repatriation to their country of origin. In the Iraqi refugee crisis, local integration seems an unlikely prospect as asylum states in the Middle East claim that they are overburdened. Resettlement to third countries, such as the US, will provide protection for more than 100,000 Iraqis having specific vulnerabilities, such as those who worked with the Multinational Forces or US government contractors in Iraq. The question then is, what is the future for the vast majority of Iraqi refugees remaining? Absent the political willingness of states to allow for local integration or to increase their resettlement quotas, the only other solution under consideration is voluntary repatriation to Iraq.
The right to return to one's country of origin is enshrined in international human rights instruments, including the Universal Declaration of Human Rights, Article 13(2), and the International Covenant on Civil and Political Rights (ICCPR), Article 12. However, repatriation must be voluntary, and refugees must be able to "return in safety and with dignity." The core components of safe and dignified return are identified in the UN's 2002 Global Consultations on International Protection [PDF] and are elaborated further in the Office of the UN High Commissioner for Refugees' (UNHCR) 2004 Handbook for Repatriation and Reintegration Activities [PDF]. They include physical, legal and material safety and reconciliation. Given the ongoing security crisis, political instability, fragile infrastructure and human rights violations that plague the new Iraqi government, each of these components presents particular challenges to successful repatriation.
Securing the legal, material and physical safety of Iraqi refugees will foremost require determining where they will live upon their repatriation to Iraq. The right to return has been interpreted to include the right to return to one's home in Article 12 of the ICCPR, Principle 28 of the Guiding Principles on Internal Displacement and by the former Sub-Commission on Prevention of Discrimination and Protection of Minorities. This right was also recognised in Annex VII of the Dayton Peace Agreement in the case of Bosnian refugees. However, the prospect of many Iraqis returning to their original homes will be difficult to realise in practice. The ethnic cleansing of their former neighbourhoods and the appropriation of their homes by violent militias has left many Iraqi refugees with no place to which they can return. Some refugees also had to sell their property in Iraq to cover their living expenses in their countries of asylum. Iraqis who attempt to return to Iraq may find their homes looted, destroyed or occupied. This places them at risk of further displacement to squatter settlements inside Iraq, where they would join the nation's currently 1.3 million internally displaced persons living in destitution, lacking access to basic services and fearing eviction. The successful repatriation of Iraqi refugees will require the creation of relocation and housing schemes, and effective property restitution mechanisms that will be able to accommodate returnees without exacerbating the precarious political, economic and security situation in the nation.
Iraqi refugees' legal and material safety is further compromised by limited employment opportunities, and continuing problems accessing public services, such as electricity, sanitation and potable water in Iraq. A 2011 report by the International Rescue Committee (IRC) noted that these problems are compounded by the frequent lack of documents necessary for enrolling in public schools, reclaiming confiscated property, accessing medical care, qualifying for food rations and applying for jobs. Undergirding these obstacles is a deep lack of trust in Iraqi governmental institutions, which are still in their formative stages and face allegations of corruption, political manipulation and lack of transparency. Legal assistance, such as that provided by the IRC and UNHCR, can provide critical help in navigating the complexities of these new bureaucracies to returning Iraqis.
Reconciliation is perhaps the most tenuous component of effective repatriation. Both the sectarianisation of Iraq and debates over the country's political future, as either a unified or federal state, have significant implications for reconciliation. Prospects for reconciliation are also impacted by the profound trauma that many Iraqis endured both under the former regime and in the aftermath of the war. Some refugees may find it too psychologically onerous to return to Iraq and participate in reconciliation processes in light of the extreme violence that forced them to flee. In such cases, should country conditions in Iraq change and be deemed stable in the future, these persons should continue to receive protection in accordance with Article 1C(5) of the 1951 Convention Relating to the Status of Refugees [PDF]. Asylum states should refrain from their deportation, and the international community should secure alternative solutions for them.
In the face of such serious obstacles to return, Iraqi refugees have been slow to take advantage of repatriation programs, primarily only doing so when facing severe economic hardships or having expired visas in their countries of asylum. The UN documented that by 2008, 220,000 refugees had returned to Iraq. But in a 2009 report [PDF], the International Organization for Migration noted that rather than returning permanently, many Iraqi refugees in Syria and Jordan travelled back and forth from Iraq, sometimes voluntarily and other times due to repeated forcible displacements. Numerous reasons necessitated these temporary returns, including going to assess the security situation, seeing elderly parents, attending funerals, collecting pensions, borrowing money and selling property. A 2010 survey by the UNHCR revealed that the majority of Iraqis who did attempt to repatriate permanently reported having insufficient resources to meet their families' needs in Iraq and being subjected to bomb explosions, kidnappings and harassment in the areas to which they had returned.
The government of Iraq is developing a plan of action to facilitate the effective return and reintegration of refugees. In 2008, it allocated USD 213 million to support these efforts, and subsequently provided financial and transportation assistance to returnees. In a 2009 report [PDF], the Brookings-Bern Project on Internal Displacement concluded that the effective repatriation of refugees will also require building peace and security, governmental institutions and law and policy frameworks supporting displaced persons in keeping with the International Compact with Iraq [PDF] and Iraq's National Policy on Displacement [PDF]. It further recommended including displacement issues in national development strategies and providing continued humanitarian support for refugees in asylum states. More specific activities critical to return should include creating mechanisms for property restitution; allocating housing and land; increasing access to public assistance, education, infrastructure and livelihoods; and developing meaningful transitional justice mechanisms. Ultimately, the success of such strategies will turn on the willingness of the international community and the government of Iraq to acknowledge and grapple with the formidable challenges of repatriation. And central to any durable solutions framework that results, the right of Iraqi refugees to live in safety and with dignity must always be paramount.
Perveen Ali is writing her Ph.D. dissertation on the refugee crisis in the aftermath of the 2003 war in Iraq. She has been a practitioner in the field of refugee protection for the past ten years and has worked for both the UNHCR and refugee legal aid NGOs, primarily in the Middle East and Africa. She received her J.D. from the University of Washington.
Suggested citation: Perveen Ali, The Challenges of Repatriation for Iraqi Refugees, JURIST - Dateline, Jan. 22, 2011, http://jurist.org/dateline/2012/01/perveen-ali-iraq-refugees.php.
Friday, January 13, 2012
JURIST Guest Columnist Lauren Mack, Benjamin N. Cardozo School of Law Class of 2012, is the Copyright Chair for the Cardozo Intellectual Property Law Society. She argues that two proposed pieces of legislation that seek to curb Internet piracy through the use of DNS filtering violate the First Amendment...
Although many agree that something must be done to stop today's rampant online infringement, the debate over how to best accomplish this daunting task has been fierce. The remedies proposed under the current versions of SOPA and PROTECT IP include requiring online advertisers to stop placing ads on the infringing website, payment network providers, such as credit card companies and banks, to cease completing payment transactions to the website and search engines to prevent the website from showing up in search results. However, the bills' most controversial remedy by far is the ability to order access to websites that have been found to contain infringing content to be blocked.
SOPA and PROTECT IP require websites to be blocked through Domain Name System (DNS) filtering. An easy way to understand the DNS is to think of it like a phone book. When a Uniform Resource Locator (URL) is typed into a browser, such as http://jurist.org, the DNS translates this into an Internet Protocol (IP) address 18.104.22.168 in this case. The IP address tells the Internet browser where to find the website, just as a phone book would tell you a friend's home address. Humans use URLs to tell Internet browsers what website to go to because they are easier to remember than a string of numbers. When a website is blocked through DNS filtering, this is like your friend's address being taken out of the phone book. The offending website is still available on the Internet, but the browser can no longer find the corresponding IP address in the DNS and, accordingly, the website never loads. There are several ways to circumvent the block, including simply typing the IP address into your browser instead of the URL.
One of the big problems with DNS filtering is that it blocks the entire domain name, not just a specific URL. Suppose there was copyrighted content located on http://jurist.org/dateline/ that JURIST did not have permission to reproduce. Instead of just blocking the infringing articles or even just all of the Dateline articles, DNS filtering would block the entire JURIST website. This would include all of the news, commentary, and even the Frequently Asked Questions section located on JURIST. This means that a lot of non-infringing free speech would be blocked along with the infringing content.
Similarly, suppose someone ran a website hosted by Google's Blogger service that contained unlicensed music for free download located at www.freemusic.blogspot.com. DNS filtering would not just block this specific infringing blog, but every single website located at a blogspot.com address, potentially including a blog containing non-infringing legal analysis and political speech. This exact scenario played out in February 2011, when the US Immigration and Customs Enforcement "seized" mooo.com by redirecting the domain name to a page describing the punishment for owning or distributing child pornography. Along with the websites hosting illegal content, 84,000 innocent websites were also shut down for several days and wrongly associated with a serious crime before the problem was corrected.
A law that incorporated DNS filtering has already been challenged and struck down on First Amendment grounds in Center For Democracy & Technology v. Pappert. The Pennsylvania Internet Child Pornography Act (ICPA) [PDF] allowed the Pennsylvania Attorney General or any district attorney in Pennsylvania to seek a court order based on probable cause requiring Internet Service Providers (ISPs) to disable access to child pornography within five days or face criminal liability. The court found that the ICPA did not survive intermediate scrutiny under the First Amendment because although the government had an important interest in eradicating child pornography from the Internet, the incidental restrictions on First Amendment freedoms from the over-blocking of innocent subdomains caused by the DNS filtering were greater than what was essential to the furtherance of that interest. In light of the easy circumvention of DNS filtering, the burden placed on the child pornography business by blocking fewer than 400 domains was not enough to overcome the suppression of free speech located on over a million innocent subdomains. Even if the non-infringing websites inadvertently blocked by SOPA and PROTECT IP are run by citizens of other countries, and whose speech is thus not directly protected by the First Amendment, the US Supreme Court in Lamont v. Postmaster General determined the right of US citizens to receive information from foreign sources is also protected by the First Amendment.
Blocking certain domain names also creates a prior restraint on speech, which is the censorship of speech before it is published. The US Supreme Court in Near v. Minnesota struck down a Minnesota law that allowed state officials to seek an injunction against any publication if it had printed malicious, scandalous or defamatory material. A small Minneapolis newspaper called The Saturday Press challenged the law when an injunction barring further publication of any content by the newspaper was issued. The Supreme Court determined that a law that results in prior restraint creates a heavy presumption against its constitutional validity. The Pennsylvania district court decided that blocking a domain name is similar to a ban on a newspaper name and also invalidated ICPA on this ground. Without a review process to unblock domain names, when infringing content is no longer hosted on them, SOPA and PROTECT IP's DNS filtering will also result in prior restraint. The drafters of SOPA seem to have anticipated this problem, as § 2(a)(1) declares that "[n]othing in this Act shall be construed to impose a prior restraint on free speech or the press protected under the 1st Amendment to the Constitution." Despite this disclaimer, the bills do not provide a method through which to avoid a prior restraint problem through the use of DNS filtering.
An alternative bill, the Online Protection and Enforcement of Digital Trade Act (OPEN), which has been backed by members of both houses, avoids First Amendment problems by not requiring ISPs to block infringing websites. Instead, OPEN calls for the infringing website's revenue streams from payment network providers and advertisers to be cut off. These remedies both of which are included in SOPA and PROTECT IP harm the website operator's ability to profit from the infringing products or content and, unlike DNS filtering, do not cause any collateral damage to non-infringing websites.
DNS filtering will harm First Amendment rights on the Internet without significantly deterring infringers. It is not an effective method of fighting copyright and trademark infringement online because it is easily circumvented and any bill that incorporates it is vulnerable to being struck down on a First Amendment challenge. Congress should seek to find a more equitable balance between fighting online infringement and the First Amendment rights of users in the US by avoiding the use of DNS filtering.
Lauren Mack graduated magna cum laude from Drexel University with a Bachelors of Science in Music Industry. She is a member of Cardozo's Cyberlaw Society and currently clerks for a business and media law firm. You can follow her on Twitter, where she tweets about media and technology law, @MusicN3rd.
Suggested citation: Lauren Mack, DNS Filtering to Fight Internet Piracy Violates the First Amendment, JURIST - Dateline, Jan. 13, 2011, http://jurist.org/dateline/2012/01/lauren-mack-DNS-filtering.php.
Friday, January 13, 2012
JURIST Guest Columnist Leila Sayed-Taha, DePaul University College of Law Class of 2012, currently works as a translator for Ace Languages Centre, where she aids asylum seekers at the Immigration Advisory Service. Here she discusses the ongoing issue of immunity as troops withdrawal and private contractors remain, and she examines the circumstances in which Iraqi citizens previously employed by the US military have been left...
The US-Iraq Status of Forces Agreement [PDF] (SOFA) explicitly states that all US forces stationed in Iraq would be completely withdrawn by December 31, 2011. The implementation of the agreement caused much controversy because the Bush administration withheld the English version of the agreement until after the vote on its legislative enactment by the Iraqi Parliament. Disagreements concerning the interpretation and meaning of some provisions caused the Iraqi government to initially proclaim the agreement to be deadlocked. Areas of dispute included legal jurisdiction over US servicewomen and men responsible for the deaths of Iraqi citizens that occur as a result of operations while on duty. Whilst the Iraqi government in declaring its sovereignty wished to opt for Iraqi legal jurisdiction in such matters, the US preferred all its forces to be legally subject to the Uniform Code of Military Justice. Despite such areas of disagreement, Article 12 of the agreement stipulated that the US would have primary jurisdiction over its members of the armed forces and Iraq shall have primary jurisdiction over US contractors that commit crimes in Iraq in addition to crimes committed by US armed forces in Iraq that do not have active duty status. The latter stipulation was considered a controversial construct, as basing legal jurisdiction on the duty status of the service member is not clear-cut or straightforward. The agreement further stipulated that the US would determine whether or not an alleged offense arose during active duty. According to Army Regulation, duty status has numerous and complex categories, and even if killed or kidnapped a soldier is still considered to have active duty status. The authors of SOFA failed to provide an explicit definition of the term "duty," and its transliteration in the Arabic version of the agreement was argued to be vague and misleading. Without a definitive meaning given to the term, it has been speculated that SOFA failed to establish a common understanding of the word in both the Arabic and English versions of the agreement, and thus the Obama administration was not capable of extending the agreement, specifically in relation to immunity, with the administration of Iraqi Prime Minister Nouri al-Maliki beyond the stipulated expiration date.
Prior to the enactment of SOFA, private contractors were considered to be immune to prosecution under Iraqi law for criminal acts as stated in Order 17 [PDF] of the Coalition Provisional Authority. After the events in Nassour and Haditha and the controversy caused by Blackwater, SOFA was considered to be a means to prevent such a reoccurrence. With the expiration of SOFA, the legal status in terms of jurisdiction and immunity of such contractors remains to be seen. It was reported in October that after the withdrawal of the troops from Iraq, as many as 5,000 private contractors would be employed in order to ensure security of US diplomats. The US Department of State, rather than the military, will be in charge of monitoring the specified roles and contractual duties to be carried out by these private security agents. Currently, the State Department has not released information on the exact nature of the contracts or duties to be carried out by these private contractors aside from providing diplomatic protection.
While the immunity of soldiers and military contractors alike is certainly a serious and ongoing issue, the precarious situation in which Iraqi citizens, formerly employed by the US military, have been left should not be forgotten. Particularly impacted by the withdrawal are those Iraqis who were employed by the US military as interpreters. Many of them, considered to be traitors in their own society, are now targets of Islamic militias, even more so in the face of the present instability. While the 2008 Refugee Crisis in Iraq Act contains provisions that grant fast-track refugee status to those Iraqis employed by US forces, particularly those facing an ongoing threat to their livelihood, the implementation of this legislation has fallen short. Unfortunately, the limitations of the system failed to efficiently provide visas for such individuals, resulting in many applying separately for asylum in European countries out of desperation. In many situations, after waiting for months for their application to be screened, asylum seekers are rejected without any explicit explanation and are not granted any opportunity to appeal. The special visa process, as provided by the statute, allows 5,000 visas per year beginning in 2008. As of October 2011, only 3,415 visas have been granted in the past five years.
Regardless of the supposed justifications for initiating US intervention in Iraq, the justifications for ending this intervention are of a completely different nature. Some may call it a matter of convenience, an ending very far from a stabilized, democratic and peaceful society as proponents of the intervention envisioned. In early December, Vice President Joe Biden declared that Iraq's violence reached an all-time low whilst on a diplomatic trip to the country. However, on January 5, 78 Iraqis were killed near a Shia shrine in Sadr City, the worst attack to hit the country in more than a year. Al-Maliki declared December 31 to be Iraq Day, a symbol of national sovereignty, independence and social unity. Yet the US leaves behind the largest US embassy in the world, twice the size of the White House compound, with a speculated 17,000 employees. Private contracting companies are moving quickly to gain licenses in order to function in Iraq. Even Blackwater (now known as Academi) seeks a license despite being banned from the country. In the face of all this, the plight of those Iraqis who assisted the very forces that sought to liberate them are currently living in fear for their lives, as the legislation put in place some five years ago has failed to fulfill its goal of providing protection. The future of the independent Iraq is anything but certain.
Leila Sayed-Taha is currently an LL.M. candidate at DePaul University College of Law and is focusing her studies on international law with a particular emphasis on human rights law. She works as an intern at Black Association of Women Step Out, where she carries out policy and legal research, and has also volunteered at Bristol Refugee Center, Asylum Justice and Amnesty International Wales. She received her LL.B. from Cardiff University in Wales.
Suggested citation: Leila Sayed-Taha, Uncertainty for Iraqis as Troops Withdrawal and Private Contractors Remain, JURIST - Dateline, Jan. 13, 2012, http://jurist.org/dateline/2012/01/leila-sayed-taha-iraq.php.
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