Showing papers in "Washington Law Review in 2004"

Privacy as contextual integrity

Abstract: The practices of public surveillance, which include the monitoring of individuals in public through a variety of media (e.g., video, data, online), are among the least understood and controversial challenges to privacy in an age of information technologies. The fragmentary nature of privacy policy in the United States reflects not only the oppositional pulls of diverse vested interests, but also the ambivalence of unsettled intuitions on mundane phenomena such as shopper cards, closed-circuit television, and biometrics. This Article, which extends earlier work on the problem of privacy in public, explains why some of the prominent theoretical approaches to privacy, which were developed over time to meet traditional privacy challenges, yield unsatisfactory conclusions in the case of public surveillance. It posits a new construct, “contextual integrity,” as an alternative benchmark for privacy, to capture the nature of challenges posed by information technologies. Contextual integrity ties adequate protection for privacy to norms of specific contexts, demanding that information gathering and dissemination be appropriate to that context and obey the governing norms of distribution within it. Building on the idea of “spheres of justice,” developed by political philosopher Michael Walzer, this Article argues that public surveillance violates a right to privacy because it violates contextual integrity; as such, it constitutes injustice and even tyranny.

Whistling in the Dark? Corporate Fraud, Whistleblowers, and the Implications of the Sarbanes-Oxley Act for Employment Law

Abstract: Passed in 2002 in the wake of the accounting scandals that resulted in billions of dollars of lost value to shareholders, the Sarbanes–Oxley Act has as its major goal the prevention of corporate corruption. This Article analyzes the impact of section 806, the portion of the Sarbanes–Oxley Act that provides protections for employees who report securities fraud, and describes the effect that Sarbanes–Oxley has on existing employment law. In addition, this Article contributes to the debate over the general effectiveness of the Sarbanes–Oxley Act, a topic of contention among both academics and press commentators. This Article argues that the Act does not go far enough to protect whistleblowers because employers do not need to specify procedures for acting upon tips that allege financial fraud. Also, employers most likely can send whistleblowing claims to arbitration, a forum that weakens the remedies available to employees. Finally, this Article provides a comprehensive survey of state whistleblowing laws and suggests changes to federal and state law to fill the gaps that remain after Sarbanes–Oxley. “Had it ever been a real company? Or had Enron been, from the very beginning, just a brilliant illusion?” I. THE STATUS QUO: WHISTLEBLOWING LAW BEFORE SARBANES–OXLEY 1035 A. Two Whistleblowers in Action: The Cases of WorldCom and Enron 1035 1. Sherron Watkins Alerts Executives at Enron of Fraud 1035 ∗ Assistant Professor of Law, Cumberland School of Law, Samford University; B.A., 1996, Dartmouth College; J.D., 1999 Harvard Law School. This Article is possible because of the generous research support given by Samford University. I would like to acknowledge the law firm Berman, DeValerio, Pease, Tabacco, Burt & Pucillo, where I was encouraged to develop an expertise with securities fraud practice. In addition, I thank Sherron Watkins for sharing her experiences as a whistleblower, which were invaluable to this Article. Thanks to Edward Berger, III, John L. Carroll, Brannon P. Denning, Jill E. Evans, Leslie Griffin, Cameron S. Matheson, Michael T. Matraia, Angela Onwauchi-Willig, Jaimi A. Reisz, Robert L. Rogers, Kenneth M. Rosen, William G. Ross, Belle H. Stoddard, Stephen J. Ware, and the editors of the Washington Law Review for their helpful comments, suggestions, and encouragement. 1. MIMI SWARTZ & SHERRON WATKINS, POWER FAILURE: THE INSIDE STORY OF THE COLLAPSE OF

Rise of the Machines: Justice Information Systems and the Question of Public Access to Court Records over the Internet

Abstract: The practices of public surveillance, which include the monitoring of individuals in public through a variety of media (e.g., video, data, online), are among the least understood and controversial challenges to privacy in an age of information technologies. The fragmentary nature of privacy policy in the United States reflects not only the oppositional pulls of diverse vested interests, but also the ambivalence of unsettled intuitions on mundane phenomena such as shopper cards, closed-circuit television, and biometrics. This Article, which extends earlier work on the problem of privacy in public, explains why some of the prominent theoretical approaches to privacy, which were developed over time to meet traditional privacy challenges, yield unsatisfactory conclusions in the case of public surveillance. It posits a new construct, “contextual integrity,” as an alternative benchmark for privacy, to capture the nature of challenges posed by information technologies. Contextual integrity ties adequate protection for privacy to norms of specific contexts, demanding that information gathering and dissemination be appropriate to that context and obey the governing norms of distribution within it. Building on the idea of “spheres of justice,” developed by political philosopher Michael Walzer, this Article argues that public surveillance violates a right to privacy because it violates contextual integrity; as such, it constitutes injustice and even tyranny.

Settling Significant Cases

Abstract: Negotiation, mediation, and other consensus-based alternatives to litigation are most often studied and defended in the context of ordinary disputes, in which liability and distributive issues are contested, but the background norms that govern the outcome of a lawsuit are not. Many consider adjudication to be the only acceptable process for addressing "significant cases": disputes about abortion, school prayer, the environment, and other value-laden issues in which background norms are contested. I argue that this perspective is ironic because litigation, like negotiation, entails compromise. Litigation is a lottery in which the substantive values a party seeks to defend, and which it claims are absolute, may be wholly or partially discredited by the court. Furthermore, litigation merely shifts the burden of negotiation to judges. I distinguish two types of negotiation, bargaining and moral deliberation, and argue that both should be viewed as legitimate alternatives to litigation for processing disputes involving deep moral disagreement. Deliberative dispute resolution processes present important opportunities for democratic participation, and settlements resulting from them may benefit both the parties and society in ways that litigation cannot. Even where parties are incapable of engaging in genuine moral deliberation, however, settlement for strategic reasons sometimes may be a sensible alternative for parties to a significant case, and should not invite scorn. Litigation and negotiation are complementary, mutually reinforcing social processes, and each has a legitimate role to play in our nation's moral discourse and the evolution of social norms.

The End of Technology: A Polemic

Abstract: This essay is a philosophical polemic against the essence of modem technology. The piece does not advance a Luddite's agenda, however, since it describes modem technology's essence as technological thinking, rather than as the manifold of technical instruments and processes. Technological thinking is not just careful planning towards well thought-out ends. Rather, it is an entire orientation to life, and as such it is a monstrosity: it relentlessly and heartlessly transforms the world's beings, including human beings, into measurable units of production and consumption that are constantly being judged for their contributions to \"productivity.\" Nature is thus made into a vast warehouse, and humanity into a standing reserve of \"human resources.\" Absent from technological thinking is any reflection on technology's end, in the sense of its ultimate purpose. A synthesis of the thinking of Heidegger, Marcuse, Weber, and Sorel, this essay claims that the ultimate end of technology as such is, and ought to be, freedom for responsibility, and that freedom from necessity is both a condition and a consequence of this. It argues that there is a desperate need for thought and speech to break with technological thinking, and to begin bringing the means of modem technology into contact with its ultimate end. \"The sadness of nature makes her mute.\"--Walter Benjamin I. THE END OF TECHNOLOGY: ASKING THE QUESTION What is the end of technology? Although this question does not mean to ask when technology will end, in the sense of ceasing to exist, it nonetheless remains ambiguous in an interesting and productive way. Consider the \"end of technology\" understood as technology's limit. On this reading, the question asks for a determination of the logical endpoint of technology: the limit, or boundary, that circumscribes technology as a concept and allows it to stand forth in thought and speech as a comprehensible whole. Since it is impossible to comprehend a phenomenon like technology in this way without paying attention to its social context, this means that technology's logical end is inextricably linked to its end in another sense: purpose. When we notice a thing we tend to notice it as something. We notice a telephone as equipment for . Professor of Law, University of Washington School of Law, William H. Gates Hall, Box 353020, Seattle, Washington 98195. E-mail address: wolcher@u.washington.edu. 1. WALTER BENJAMIN, On Language as Such and on the Language of Man, in REFLECTIONS: ESSAYS, APHORISMS, AUTOBIOGRAPHICAL WRITINGS 314, 329 (Edmond Jephcott trans., 1978). Washington Law Review calling someone, a house as a place for humans to dwell, a pencil as a utensil to write with, and so forth. What a thing is, and what a thing is for, comprise two sides of the same coin. Thus, it would appear that the purpose of technology, together with a determination of what technology is, gives critical reason an important and singularly synthetic question to think: What is the end of technology? We live in an age that has been aptly called the \"second industrial revolution.\",2 Unlike the first one, the second industrial revolution is characterized primarily by the fact that scientific discoveries are translated routinely and almost immediately into new procedures of production and distribution-new ways to dominate nature's beings and to control human behavior. Domination and control are not necessarily bad things to strive for, of course. As Herbert Marcuse observes, the instruments of technology by themselves \"can promote authoritarianism as well as liberty, scarcity as well as abundance, the extension as well as the abolition of toil.\"'3 As concepts, however, domination and control do shed some light on the meaning of our question. Sadism aside, the phenomena of domination and control belong to the category of means rather than the category of ultimate ends. To inquire about the end of technology is thus to ask for it to be determined in such a manner that we can understand what Aristotle called its final cause: its purpose for being what it is. In short, what, ultimately, is technology aiming at? Technology's ultimate end is not the same as the sum of its technical performances. Marcuse rightly distinguishes the paraphernalia of modem technology (\"technics\") from the totality of technics and their modes of organizing and changing social relationships, prevailing thoughts, and behavior patterns (\"technology\").5 If one were to say that the purpose of the telephone is to speak with people at a distance, that of the Internet to provide instantaneous access to information, and that of the automobile to travel rapidly from here to there, all of these particular ends would remain merely intermediate. One is still entitled to ask what the ultimate point is of having instruments that allow us to speak with people at a distance, gain instantaneous access to information, and make 2. HERBERT MARCUSE, TOWARDS A CRITICAL THEORY OF SOCIETY 118 (Douglas Kellner ed.,

Capital Punishment, Proportionality Review, and Claims of Fairness (with Lessons from Washington State)

Abstract: This Article explores the adequacy of one of the safeguards adopted by many states to ensure that the death penalty is applied fairly, following the reinstatement of capital punishment in 1976. Relying chiefly on evidence drawn from Washington State, this Article asks whether the practice of comparative proportionality review has ensured that there is now a rational basis for distinguishing between those who are sentenced to die and those who are not. An analysis of the trial judge reports employed by the Washington State Supreme Court in reviewing death sentences, as well as the method used by the court in conducting its reviews over the course of the past two decades, indicates that the death penalty remains arbitrary and capricious in its administration. The failure of comparative proportionality review furnishes yet another reason for concluding that capital punishment cannot be conducted in a way that comports with claims of fairness. \"[C]apital punishment [must] be imposed fairly, and with reasonable consistency, or not at all.\"' IN TR O D U CTIO N ................................................................................ 776 I. COMPARATIVE PROPORTIONALITY REVIEW: ITS JUSTIFICATION AND CONSTITUTIONAL HISTORY ....... 784 II. THE LOGIC OF COMPARATIVE PROPORTIONALITY R E V IE W .................................................................................... 794 A. Determining the Universe of Cases for Comparison .......... 795 B. Specifying the Pool of Similar Cases ................................. 798 C. Identifying a Test of Proportionality .................................. 802 III. COMPARATIVE PROPORTIONALITY REVIEW IN W A SH IN G TO N ........................................................................ 806 IV. THE DEFICIENCIES OF COMPARATIVE PROPORTIONALITY REVIEW IN WASHINGTON ............ 814 A. Washington's Trial Judge Reports and Their Defects ........ 815 1. Absent, Unrevised, and Late Reports ........................... 816 2. Inaccurate and/or Inadequate Information Regarding Defendants and Victims ................................................ 822 Baker Ferguson Professor of Politics and Leadership, Whitman College. For their assistance at various stages of this project, I would like to thank Beth Andrus, Dave Beckley, Alissa Berley, Ashifi Gogo, Mark Larranaga, Linh Ngo, Rebecca Lindemann, Jerry Sheehan, and Nancy Talner. 1. Eddings v. Oklahoma, 455 U.S. 104,112 (1982). Washington Law Review Vol. 79:775, 2004 3. Inaccurate and/or Inadequate Information Regarding Aggravating and Mitigating Factors ............................. 827 4. Inaccurate and/or Inadequate Information Regarding R ace and Ethnicity ........................................................ 831 B. Comparative Proportionality Review in Washington and Its D efects ........................................................................... 835 1. Comparative Proportionality Review to 1995 .............. 837 2. Comparative Proportionality Review After 1995 ......... 847 V. THE FAILURE OF COMPARATIVE PROPORTIONALITY REVIEW AND THE FUTURE OF THE DEATH PENALTY .......................................................... 857 A PPEN D IX A ...................................................................................... 868

Crafting a License to Know from a Privilege to Access

Abstract: CRAFTING A LICENSE TO KNOW FROM A PRIVILEGE TO ACCESS Jane K. Winn Should the doctrine of trespass to chattels apply to unauthorized access to Internet facilities? If it does, then the property rights of the owners of computers connected to the Internet may be vindicated, but at a cost of diminished public access to information posted on the Internet. If it does not, then incentives to invest in the kind of commercial facilities that now largely constitute the Internet may be undermined, but the public interest in knowledge gleaned from information posted on the Internet will be protected. Although trespass to chattels has been derided as an anachronism ill-suited to the Internet, and its application to Internet activities rejected in some recent cases, other cases have held decisively that its application gives appropriate recognition to the rights of owners of computer equipment connected to the Internet. In order to safeguard the “license to know” factual information posted to the Internet that the public currently enjoys, courts should recognize an individual privilege to access Internet resources in a reasonable manner.