Arizona State Law Journal

Archive for April, 2011

ASU Law student Dan Orenstein was selected as a Burton 2011 Distinguished Legal Writing Award winner for his article, “Shaken to the Core: Emerging Scientific Opinion and Post-Conviction Relief in Cases of Shaken Baby Syndrome.” His article was published in the Winter 2010-2011 issue of the Arizona State Law Journal, available at 42 Ariz. St. L.J. 1305. A summary of his article is available here.

Dan will receive his award at a ceremony held in the Library of Congress in Washington, D.C. on June 13, 2010. The event includes guest speaker Supreme Court Justice Sonia Sotomayor and honored guest Supreme Court Justice Stephen Breyer.

Dan served as the 2010-2011 Executive Note & Comment Editor of the Arizona State Law Journal. He graduates from the Sandra Day O’Connor College of Law in May 2011.

Laura Curry’s student comment, The Elusive Right to Cross-Examine Individuals Presenting Victim Impact Statements in Arizona Capital Sentencing Proceedings, will be published in the upcoming summer 2011 edition of the Arizona State Law Journal. Here is a brief summary. 

During the late 1970s and early 1980s, victim impact statements emerged as a topic of national significance as part of a broader Victims’ Rights Movement.  Many states heard the call for victim impact statement legislation, and followed by passing statutes and constitutional amendments guaranteeing victims the right to be heard at sentencing.  Of the thirty-four states with the death penalty, thirty-two currently allow victim impact evidence to be heard at capital sentencing proceedings. Arizona, however, is the only state that has adopted and applied a statute explicitly stating that victim impact statements at capital sentencing proceedings are not offered as witness testimony and not subject to cross-examination. Recent United States Supreme Court decisions regarding death penalty and Confrontation Clause jurisprudence raise serious questions as to the constitutionality of this statute under the Sixth and Eighth Amendments.

This comment argues that those offering victim impact statements in capital sentencing proceedings should be subject to cross-examination, and that Arizona’s current death penalty statute denies defendants their Sixth Amendment rights. It first describes the United States Supreme Court’s treatment of victim impact testimony, and how different states have codified legislation in response to the limited acceptance expressed in Payne v. Tennessee. It next considers general Confrontation Clause rights, and how recent United States Supreme Court decisions suggest that they should be extended to the sentencing phase of capital proceedings. Finally, it examines how Arizona has applied the holding in Payne, and the way in which Arizona’s statutory scheme prohibiting cross-examination is in direct conflict with the Payne Court’s rationale for allowing its admission.

As the legal definition of testimonial evidence continues to evolve, this comment adds another facet to the debate.  It identifies a problematic area of Arizona capital sentencing law, and highlights a potential objection that Arizona capital defense attorneys could choose to raise in their cases.

More than a year later, Citizens United v. FEC, 130 S.Ct. 876, the United States Supreme Court’s notorious decision on corporate free speech, remains bitterly controversial. Many (including me) view it as a disastrous decision. In essence, by equating money with speech and corporations with citizens, it allows corporations, with potentially unlimited wealth, to buy up speech, to corner the market on speech and the very means of communication, and so to determine political outcomes. Totalitarian regimes, such as Nazi Germany and Stalinist Russia, were well aware that control of the media was one of the key prerequisites for gaining and retaining power. The Supreme Court’s refusal to allow appropriate, necessary regulation of corporate speech opens the door to corporate control of speech—and political power.

Naturally, Citizens United follows earlier precedents that paved its way by gradually enhancing corporations’ supposed speech rights and accepting that money equals speech. Similarly, the Supreme Court gradually erased the traditional proper distinction between commercial speech—hucksterism to sell things—and political speech, a process the late Chief Justice Rehnquist resisted, largely alone. So Citizens United results from a longstanding tendency in its direction, although neither the tendency nor the particular outcome was ever a foregone conclusion. Rather, no legal or extralegal factors pushed that tendency off its track.

Why not? Why are we now confronted with the prospect of a return to the Gilded Era, when railroads and other powerful corporations bald-facedly bought and sold congressional seats and entire state legislatures?

I believe there is an underappreciated extralegal factor that powerfully impacted the cycle of American political corruption and reform over the past century and a half: an alternate, challenging world ideology that kept American corporate capitalism on a leash, and on the straight and narrow, from the 1920s through the 1970s, then waned in the 1980s, opening the door to our new Gilded Era.

Namely, Soviet communism.

I am aware of the harshness and horrors of Bolshevism and Stalinism. I don’t celebrate those, as I don’t celebrate the brutal labor exploitation of America’s Gilded Era. I’m just pointing out that, ironically, America’s great enemy helped to keep America decent. Capitalism behaved better when it was not the only game in town.

From the late 1800s until 1917, capitalism forcefully tried to prevent a socialist or communist challenge even from being born. From 1918 through the early 1920s, America and its capitalist allies—Britain, France, and Japan—tried to strangle communism in its cradle by sending soldiers to Russia to help Czarist loyalists defeat the Red Menace, unsuccessfully. But from 1929 through the collapse of the Iron Curtain, communism posed a challenge to world capitalism—and at certain times, notably the Great Depression, it looked as though communism was winning. Throughout the Cold War, as America and Russia dueled for the hearts and minds of the developing world, American leaders knew that America had to look more than just rich to the rest of the world—it also had to look decent, fair, and worthy by non-economic metrics.

Consider civil rights. American capitalism was perfectly happy with lucrative cotton cultivation on slave plantations, and the free market did little or nothing to dismantle racial segregation in the century after the Civil War. But as Martin Luther King, Jr. pointed out, and as American officials recognized, America had little chance of winning the hearts and minds of people of color outside America when those people could see, in newspapers and magazines or on television, people of color inside America being brutalized with fire hoses and police dogs merely for requesting their constitutional rights. America had to dispel those images to keep the developing world from going pro-Soviet.

A similar logic applied to labor relations. Capitalism’s traditional way of defeating socialism was to use spies, thugs, and corporate police forces to break up unions and break the heads of union organizers, most notoriously at the plants of union-hating Henry Ford. But a more sophisticated, successful approach was to assure decent wages and working conditions. This happened not spontaneously by the magic of the free market, but through hard-fought battles, and federal intervention, in the shadow of the communist challenge. That challenge even impacted America’s 1960s environmental awakening: there, too, we had to prove we could do better than the Soviets.

Since the 1980s, there have been no challenges, and American (and global) capitalism is back off the leash, as it was in the Gilded Era. And civil rights progress has largely stalled, environmentalism is dead in the water, unions are on the ropes, and labor standards and conditions have been rapidly backsliding. American leadership in public education is a distant memory, the broad middle class that characterized postwar America is squeezed and eroding, and economic misdistribution and polarization is increasing—much as in the Gilded Era.

In short, without proper regulation from within or a meaningful challenge from without, capitalism, no longer forced to behave, is reverting to its roots and showing some of its true colors not seen for decades. It is starting to act the way that provoked the socialist/communist challenge in the first place. Citizens United is a decision for the new Gilded Era, hearkening back to the railroad lawyers on the Supreme Court who gave corporations whatever they wanted back in the old Gilded Era. And sadly, America, however rich, is looking less decent, fair, or worthy by non-economic metrics.

Apparently, we need a new challenge.

Dr. Scott Dewey
Assistant Director, Scholarly Support and Research Assistant Program
UCLA School of Law, Law Library
385 Charles E. Young Dr. East
1106 Law Building
Los Angeles, CA 90095-1458
(310) 794-5387
dewey@law.ucla.edu

Federal law enforcement officials have been tracking the movements of criminal suspects since before technology would allow. The original form of government tracking was simply to follow suspects, either on foot or by vehicle. Next, law enforcement agencies, such as the FBI, would install their own tracking equipment on or inside a vehicle, plane, boat, or other object to monitor and track a suspect’s location. Today, the cell phone has provided law enforcement officials a priceless investigative tool for monitoring the movement of individuals.

Can You Find Me Now?: The Federal Government’s Attempt to Track Criminal Suspects Using Their Cell Phones discusses the timely, relevant, and hotly debated topic of whether the government should be able to track cell phones upon a showing of anything less than probable cause. This article is especially timely because of the disagreement among district courts as to how to resolve this controversial issue. Some judges have allowed the government to obtain cell phone location information upon a showing of “specific and articulable facts,” others have required a warrant founded upon probable cause, and still others have limited the type of information the government can obtain. In addition, appellate resolution of this issue is unlikely because the federal government has never sought appellate court review when it has been denied in its requests for cell phone location information, and because when the federal government is granted access to the information it seeks, there is no other party in court to appeal the judgment. Consequently, this issue will continue to be fiercely debated as the government requests cell phone location information from other district courts across the country.

The article is unique in that it takes a contrary position to most of the scholarly literature available on the topic. Most articles argue that the government should not be able to obtain cell phone location information unless it obtains a warrant founded upon probable cause. They generally rely upon fundamental Fourth Amendment privacy concerns as the basis for their conclusions. This article argues that the government can actually rely on the Fourth Amendment as a basis for obtaining cell phone location information without a showing of probable cause, and even without a court order. In the alternative, this article argues that the government can obtain the same information through a court order without showing probable cause.

This article has been written by guest author Maritza Reyes, Assistant Professor of Law, Florida A&M University College of Law.

Most Americans agree that we need comprehensive immigration reform. The failure of the President and Congress to act in this regard has been cited as a reason for the passage of S.B. 1070 in Arizona. The arguments that S.B. 1070 is unconstitutional will be addressed in the federal courts. But, some states are not waiting for a U.S. Supreme Court ruling; instead, states like Florida are following Arizona’s lead and proposing similar or harsher immigration enforcement legislation. However, Florida should claim its own leadership position and make a decision based on the best interests of its state’s diverse population and its economy.

Let’s begin by pointing out two crucial facts: Florida has a large Latino population and tourism is the major industry in the state. Frankly speaking, the pejorative label “illegal alien” is really code speech in the mind of some Americans for stereotypical-looking and speaking Latinos/Hispanics. For example, an early state immigration proposal, the Florida Immigration Enforcement Act, included a provision granting a presumption of lawful presence to Canadians and many Europeans. Regretfully, Florida has a history of making legislative mistakes, i.e. its segregation laws, which have contributed to a tradition of racism that the state is still trying to overcome. The proposed immigration laws will foster conflict among the state’s diverse communities. As if the current economic crisis was not enough, the enactment of state immigration laws will also turn Florida into a police state, which will have a chilling effect on its tourism industry. Tourists do not want to come on vacation to a place where they must walk around in fear of (1) losing their travel documents, which they will have to carry with them at all times, (2) being questioned and detained during their travels, or (3) having U.S. citizens viewing them as potential immigration violators because they look or speak like “illegal aliens.” Some tourists love vacationing in the United States because of the freedom to travel without being checked or watched at all times.

The Arizona law has already proved oppressive and damaging to a Latino population that is maligned with the “illegal alien” tag, disenfranchised due to the legacy of racism, and burdened with the task of continually fighting to be accepted as full members of the American polity. Florida’s Latino population is atypical of most other states in that the majority of its Hispanic population is Puerto Rican and Cuban. Puerto Ricans are U.S. citizens at birth, and Cubans generally have a right to legal residence through laws specifically legislated for Cuban immigrants. Therefore, the make-up of the Latino population of Florida increases the possibilities that many Latino U.S. citizens or legal residents would be racially profiled, and it opens the state to potential civil rights violations and lawsuits — human and financial costs that Floridians must consider.

Moreover, the state should not give a “legal” tool to the racist remnants that would like to continue to divide the nation. Undoubtedly, there would be well-meaning police officers who may find themselves in the unfortunate situation of having to enforce an ill-conceived law. But, the scariest prospect is the power that will be granted to law enforcement officers and a segment of the population that hold racist animus (consciously and unconsciously). Neighbors will be encouraged to play the role of enforcers by spying on their neighbors and reporting them, even anonymously, as proposed in Florida Senate Bill 1896. A caste system will be created under the guise of immigration status. Children of racist parents will now learn that other children that may be of recent foreign origin (many of them Latinos), whether by birth or by ancestry, need to be questioned about their status. This is not far-fetched; President Barack Obama is still being challenged to produce proof of his U.S. birth.

Florida’s livelihood depends, in large part, on visitors from South America. Walt Disney World recently announced that, despite the worldwide economic problems, South American tourists have been coming to the park in record numbers. These tourists have fueled Florida’s economic growth for decades. Latin American tourists may now be targeted, by appearance or language, when law enforcement officers are trying to identify so-called “illegal aliens.” After the enactment of S.B. 1070, Mexican tourists have already been harassed by local law enforcement in Arizona. Latin American countries are warning their citizens to beware of visiting Arizona. Floridians must not risk alienating visitors that come to the state and pump money into its economy.

The legacy of Jim Crow segregation laws should serve as a stark reminder of political positions stimulated by racist animus. Floridians must be careful not to succumb to political agendas, which are, for the most part, advanced by individuals who want to remain in public office at any cost, or, worse yet, by racists who are hiding under the pretext of immigration control. Citizens cannot throw away common sense and good judgment; they must demand that self-serving politicians and ill-intended citizens stop the rhetoric about bringing an Arizona-type law to Florida. The price to be paid if such laws are enacted will haunt the state for decades, or even, as in the case of the Chinese Exclusion Cases, for centuries to come.

Megan Scanlon’s student comment will be published in the upcoming summer 2011 edition of the Arizona State Law Journal. Here is a brief summary.

From Theory to Practice: Incorporating the “Active Efforts” Requirement in Indian Child Welfare Act Proceedings

The Indian Child Welfare Act (“ICWA”) recently turned thirty-three. The ICWA is a fascinating law because it has remained unchanged since its inception, and its terms have only reached the United States Supreme Court in a single case. Yet, the ICWA is frequently applied to thousands of cases across the country without consistency. In particular, the “active efforts” requirement within the ICWA continues to plague both state and tribal courts. Confusion surrounding the meaning of active efforts and what the term requires is a challenge confronting judges, attorneys, social workers, and other organizations involved in Indian child proceedings. Does “active efforts” mean something more than “reasonable efforts,” a term used by non-Indian child adoption laws? Does “active efforts” require child welfare agencies to cater to the particular needs of Indian tribes and families? This comment answers both questions in the affirmative.

The comment surveys recent cases from numerous state supreme courts, including Utah, Nevada, Michigan, Minnesota, South Dakota, and Maryland, which addressed these two aforementioned questions or granted certiorari to review the active efforts requirement. ICWA studies and surveys published within the last ten years are also cited in the comment to support my argument. Courts that have not addressed the active efforts issue will soon tackle the question as the ICWA continues to face increasing scrutiny in the wake of the judicially created “existing Indian family exception.” Additionally, scholars and legislators are now reviewing the ICWA’s history, its present status, and its future. Should the ICWA be amended in the near future, a new definition of active efforts is imperative.

This comment is relevant not only for practitioners in Arizona, but also those in other jurisdictions. This article utilizes information from the ICWA’s legislative history, the Bureau of Indian Affairs (BIA) guidelines, and ICWA application in various states to promote a uniform standard for active efforts across state and tribal lines. By including cases from multiple courts, this comment analyzes the current status of the active efforts requirement in practice. ICWA studies from Arizona, South Dakota, and North Dakota that supply additional data, help shape the recommendations in this comment to improve the application of the active efforts requirement.

To learn more about the history, current developments, and potential future for the active efforts requirement in ICWA proceedings, please see my comment in the Summer Issue of the Arizona State Law Journal.

On March 31st, 2011, ASU Law student Cody Huffaker was presented with an award during the Scribes Dinner at the 2011 National Conference of Law Reviews, hosted by the Thomas Jefferson School of Law in San Diego. The award was for the best student-written article in a law review or journal in the country.

Cody’s article, “A New Type of Commandeering: The Bypass Clause of the American Recovery and Reinvestment Act of 2009 (Stimulus Package),” was published in the Fall 2010 Issue of the Law Journal. It is also available on Westlaw at 42 Ariz. St. L.J. 1055.

Past winners are listed here: http://www.scribes.org/law-review-award.

Congrats, Cody!!

Caroline J.S. Picart[i]

Well before George Balanchine (1904-1983), Loïe Fuller (1862-1928), Isadora Duncan (1877-1927), Ruth St. Denis (1879-1968), and Martha Graham (1894-1991) pioneered American modern dance.  They were white women working in male-dominated and visually racially-mixed theatrical markets (while maintaining the dominance of whiteness).  Balanchine, a Russian émigré, was the first U.S. choreographer to acquire copyright protection for his choreographic works through his will,[ii] and eventually, it was through his estate that the first copyright infringement claim occurred.[iii]

Balanchine created the “standard look” of the hyper-whitened, ethereally slim ballerina, and with that, the history of copyrightable American modern dance choreography began.  Balanchine’s choreography became institutionalized as “property”—one that the law regards as “whitened” enough to delimit from the public domain.  And it is through Balanchine’s copyrighted choreography that his estate became powerful enough to lay claim on photographs of his choreography as corollary property.

Balanchine created a will bequeathing his ballets as property because of conversations with a lawyer, Theodore M. Sysol, whom Barbara Horgan, Balanchine’s personal assistant, had hired.[iv] Balanchine, who had always lived in the present and never thought about the future, found out that upon his death without a will, his sole heir would be his brother who lived in Georgia, in the Soviet Union.[v] Appalled, Balanchine was determined not to let all of his possessions go, not to his brother, but the Communist government, whom he suspected would claim everything.[vi] Initially, Balanchine thought his ballets were “not worth anything,”[vii] but the lawyer, knowing of the 1976 Copyright Act granting copyright protection to choreographic works, convinced Balanchine that the ballets could be bequeathed to Balanchine’s selected heirs.[viii] Galvanized into action, Balanchine drew up detailed lists of his ballets (fulfilling the “fixation” requirement for copyright protection), as well as his other assets.[ix] Balanchine signed the will on May 25, 1978; except for one minor modification, incorporated through a codicil on June 18, 1979, the will remained unchanged.[x]

Eventually, Balanchine’s ballets, inclusive of its look of hyper-whitened, impossibly thin feminine beauty, became delimited from the public sphere as private property.  The ability to control not only performances of the ballets, but also their “look” or representation, now passed into the hands of Balanchine’s principal legatees: Tanaquil Le Clercq (his fourth and last wife, felled by polio at the height of her career, and from whom he obtained a Mexican divorce with the intent of pursuing Suzanne Farrell);[xi] Karin von Aroldingen (a prima ballerina who became a close Platonic friend to the aging choreographer after Farrell had rejected Balanchine’s romantic advances);[xii] and Barbara Horgan (Balanchine’s devoted personal assistant).[xiii]

Since Balanchine’s choreographic works were now legally delimited from the public domain, heirs of his intellectual property had to be vigilant that their newly acquired rights would not be violated.  One such protective action, which resulted in a landmark copyright infringement case, Horgan v. McMillan,[xiv] was initiated in response to MacMillan’s publication of Ellen Switzer’s book, The Nutcracker:  A Story & A Ballet, which had photographs of Balanchine’s version of The Nutcracker.[xv] The New York City Ballet Company’s “official photographers” took the photographs, and the Company, and its unions, as well as individual dancers, had granted permission to use the images.[xvi] Briefly, Horgan, as the executor of Balanchine’s estate, sought to block publication of the book by suing in the Federal District Court of New York on grounds of copyright infringement.[xvii] The district court ruled that because dance is an art of motion, still photographs, which capture static images, could not constitute infringement, since they could not sufficiently capture motion and thus, could not provide a basis for infringement.[xviii] Undeterred, Horgan appealed and this time, won.[xix] The appellate court held that the district court had applied the wrong test[xx] and reversed and remanded.[xxi] According to Chief Judge Wilfred Feinberg, the correct test to apply is “not whether the original could be re-created from the allegedly infringing copy, but whether the latter is ‘substantially similar’ to the former.”[xxii]

Horgan II thus completely reversed Horgan I.   Where Horgan I left Balanchine’s estate with no control over photographic reproductions of the choreography, Horgan II left absolute control of photographic materials of Balanchine’s ballets in the hands of Balanchine’s estate.  It is difficult to think of an exception that lies beyond Horgan II’s characterization of the “substantial similarity” test as applied to Caras and Costas’ photographs of Balanchine’s Nutcracker choreography.  Such dominance of control over choreography is true, principally of Balanchine’s estate; crucial to establishing such control was Balanchine’s possession of whiteness as status property as a male ballet master.

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[i] Caroline J. S. Picart is a J.D. Candidate (2012) at the University of Florida Levin College of Law; she was a tenured Associate Professor of English and Humanities, with a Courtesy Appointment at Florida State University Law School.  She has a Ph.D. in Philosophy from Pennsylvania State University, and was a postdoctoral scholar at the Cornell University School of Criticism and Theory. The author thanks Kenneth Nunn, Danaya Wright, Jeffrey Lloyd and Gerardo Rivera for prior comments.

[ii] Bernard Taper, Balanchine:  A Biography with a New Epilogue 399-400 (3d ed. 1996) (1984) .

[iii] Horgan v. MacMillan, Inc., 621 F. Supp. 1169 (S.D.N.Y. 1985) [Horgan I]; Horgan v. MacMillan, Inc., 789 F.2d 157 (2d Cir. 1986) [Horgan II].

[iv] Taper, supra note 2 at 399.

[v] Id.

[vi] Id. at 400.

[vii] Id.

[viii] Id.

[ix] Id.

[x] Id.

[xi] Id. at 324.

[xii] Id. at 341-42.

[xiii] Id. at 401.

[xiv] Horgan I, 621 F. Supp. at 1169; Horgan II, 789 F.2d  at 157.

[xv] Horgan I, 621 F. Supp. at 1169.

[xvi] Id. at 1170 n.2.

[xvii] Id. at 1170.

[xviii] Id.

[xix] Horgan II, 789 F.2d at 164.

[xx] Id. at 163.

[xxi] Id. at 164.

[xxii] Id. at 162.



This article has been written by guest author Scott Shackelford, Assistant Professor of Business Law and Ethics, Indiana University.

Defining Privacy in the Information Age

Privacy is the subject of literally thousands of scholarly and popular books and articles.[i] Despite this great effort, the old challenge of protecting civil liberties while also providing public safety, including cybersecurity, remains a critical question, especially in the Information age.  Civil libertarians push for preserving Internet freedom, while many countries are increasingly anxious to protect critical national infrastructure, stop cyber espionage and cybercrime, and even prepare for cyber war.[ii] But does this inevitably mean the end of anonymity for Internet users?  Not necessarily.  According to Colonel Charles Williamson, “each nation has to strike a balance between cybersecurity and civil rights, especially privacy.”[iii] How nations accomplish this balancing act will go a long way in determining the extent of national regulation over cyberspace, as well as ultimately defining privacy in the Information age.

As with property and pornography, different countries define privacy in different ways.  Nations around the world, in particular the common and civil law nations of Europe that share similar legal cultures with the United States, are grappling with how best to strike a balance between the competing rights of privacy and freedom of expression—both of which are critical to the functioning of democratic society.  In the United States, for example, privacy law began as “the right to be left alone,” [1] whereas in Germany courts often grant privacy rights on a temporal basis.  Simply put, if the public interest is defined broadly enough, then nations have a freer hand in intruding on citizens’ privacy protections.

Privacy concerns generally arise on the Internet in two circumstances.  The first case involves businesses, as many surveys have indicated that privacy concerns are the main factor holding back e-commerce worldwide.  This may in part be self-inflicted, as a May 2000 Federal Trade Commission (FTC) report found that while 90 percent of U.S. websites voluntarily display privacy policies, only 20 percent comply with them.[iv] Second, the impact of cyberspace on personal freedoms and human rights has been the focus of civil rights organizations worldwide.  These groups note that privacy may be violated online in three primary ways:  (1) the user’s IP address may be compromised, allowing an attacker to create a profile of the user by viewing all of the websites that they visit; (2) an attacker can clone temporary files called “cookies,” allowing an attacker to store information during subsequent visits to the same websites; and (3) website operators themselves can collect, store, and trade information with or without users’ tacit permission.[v] It is this second privacy concern that I focus on here.

Much of the problem with strengthening privacy online is due to the fact that we live in a time in which the very definition of privacy itself is being rewritten, often in a conflicting fashion.  In an era in which the willingness of millions of people to sacrifice their personal privacy online is made manifest by an explosion in smartphone use and social networking.  Facebook.com recently faced a wave of criticism from its more than 500 million users and backed down from proposed changes to its user agreement that would have made it nearly impossible to delete user profiles and protect private information.[vi] And while a growing number of people are choosing to broadcast every intimate detail of their lives through blogs, other users are fighting privacy violations due to court rulings requiring YouTube.com to hand over information about its clients’ viewing habits.[vii]

Thus, while some individuals wish to promote their freedom of expression even at the expense of their privacy, many others do not.  Despite this disparity, current U.S. laws, where they exist at all, often maximizes freedom of expression at the expense of privacy in most circumstances.  Technology has made it easier than ever to breach the increasingly sheer veil of privacy, whether by media, private investigation, workplace monitoring, or government surveillance.  As a result, the debate about how best and when to protect privacy in a digital world, as encapsulated by the Facebook and YouTube sagas, is playing out in courtrooms around the world with widely varying results.  And despite the presence of guiding international law on the subject, privacy rights have not converged in countries even as similar as Europe and the United States, though there has been increasing intra-European convergence.  Many nations agree in principle for example that the individual’s right to privacy is a human right recognized in international treaties, including the UDHR and the 1966 International Covenant on Civil and Political Rights.[viii] But it is answering what constitutes infringement of this right that cultural differences begin to arise.  Breaches of privacy may constitute spying, taping conversations, taking pictures, and publicizing information in the press about an individual’s private life, depending on the jurisdiction.[ix]

Consequently, despite its acknowledged importance, the concept of individual privacy varies greatly across cultures—British paparazzi are commonly thought to be among the most intrusive in the world,[x] while in New Zealand celebrities enjoy relative privacy.[xi] For example, consider the vague Greek right to privacy, in particular that “one’s private life is considered to be the space set by the person itself within which he is considered to enjoy his private and family activities uninterrupted and without intrusions by third parties.”[xii] And these differences, especially between the United States and Europe, are growing ever more divergent.  Defining privacy is critical, beyond merely economic reasons, since “the Internet presents unparalleled opportunities to collect, aggregate, and disseminate information about a person or to develop a profile on a person that might be used by governments, businesses, employers, one’s personal enemies, or other organizations.”[xiii] Greater efforts are needed to incentivize multilateral collaboration on privacy protections in line with international legal protections lest we prove Benjamin Franklin’s maxim “Those who desire to give up freedom in order to gain security will not have, nor do they deserve, either one.”

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[1] Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 193 (1890).

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[i] See for example Fred Cate, Privacy in the Information Age 1 (1997).

[ii] Tom Gjelten, Does Averting Cyberwar Mean Giving Up Web Privacy?, NPR News, June 9, 2010, available at http://www.npr.org/templates/story/story.php?storyId=127575960.

[iii] Electronic interview with Col. Charles Williamson, Deputy Staff Judge Advocate, U.S. Air Force, Apr. 22, 2010.

[iv] Marcus Franda, Governing the Internet: The Emergence of an International Regime 159 (2001).

[v] Id. at 158.

[vi] Alan Cowell, Facebook Withdraws Changes in Data Use, N.Y. Times, Feb. 18, 2009, available at http://www.nytimes.com/2009/02/19/technology/internet/19facebook.html?hp.  See also Scott Neuman, Facebook CEO’s Gift: Philanthropy or Image Control?, NPR News, Sep. 24, 2010, available at http://www.npr.org/templates/story/story.php?storyId=130101294&ft=1&f=1001.

[vii] Google must divulge YouTube log, BBC News, July 3, 2008, available at http://news.bbc.co.uk/2/hi/technology/7488009.stm (last visited Feb. 19, 2009).

[viii] Universal Declaration of Human Rights of 1948. GA Res. 217A (III), UN Doc. A/810, at Art. 12 (1948) (stating that “No one shall be subject to arbitrary interference with his privacy, family, home, or correspondence, nor to attacks upon his honor and reputation.  Everyone has the right to the protection of law against such interference or attacks”); International Covenant on Civil and Political Rights, G.A. Res. 2200A, 21st Sess., U.N. GAOR, art. 17, U.N. Doc. A/6456 (1966).

[ix] Public Figures and Right of Privacy in Greek Private Law, http://www.ucl.ac.uk/laws/global_law/publications/institute/docs/karakostas.pdf (last visited Feb. 17, 2009).

[x] See generally Wibke Ehlers, The Right to Privacy and Public Figures (2004).

[xi] New Zealand’s Privacy Act 1993, Privacy Amendment Act 1993, Privacy Amendment Act 1994, http://www.privacy.org.nz/slegisf.html.

[xii] See also P. D. Dagtoglou, Constitutional Law, Private Liberties 324 (1991); and A. Manesis, Constitutional Rights 229-30 (1982).  For the proposed definitions in Greek and foreign literature see generally Michaelides-Nouaros, The inviolable of Private life and the Freedom of the Press (1983).  This right is also enshrined in the Greek Constitution which provides for one’s freedom to develop his personality as he wishes.  Greek Const., art. V.

[xiii] Franda, supra note iv, at 158.

The Arizona State Law Journal will soon publish an article by Brett McDonnell, Professor of Law at the University of Minnesota School of Law. Professor McDonnell’s article, Setting Optimal Rules for Shareholder Proxy Access, surveys recent state and federal changes concerning the shareholder proxy access and the “altering rule,” whereby shareholders can propose a change to the bylaws about proxy access. Prior to the SEC promulgating a new rule, shareholders did not have access to the corporate proxy materials to make board nominations in any state except one. Further, boards could also exclude a proposal to the bylaws by shareholders to allow such access. While shareholders could run their own candidates, without access to the proxy materials sent out to all shareholders by the corporation, this was prohibitively expensive. This restriction limited shareholders’ power to alter board directors to two alternatives: voting on board members or selling their shares. The change to the rule gives more power to shareholders.

Shareholder proxy access allows shareholders to nominate their own candidates for director positions. The SEC recently modified Rule 14a-11 so that by default, shareholders who have owned at least three percent of the outstanding shares of stock for at least three years can nominate up to one director or twenty-five percent of the board, whichever is greater. McDonnell argues that this is consistent with shareholder power to vote for directors without being able to interfere with specific policy decisions. Shareholder voting is a form of accountability. As directors act as agents for shareholders, he argues, allowing shareholders to nominate and vote makes the accountability more effective than the mere rubberstamp of voting for board-nominated candidates.

While the SEC set the default rule in Rule 14a-11 to broaden shareholder power, Rule 14a-8 does not allow shareholders to vote to change this default to a more restrictive rule.  McDonnell argues that important principles, like freedom of contract, are safeguarded by allowing a more generous altering rule. He proposes that shareholders ought to be able to change the rule by amending the bylaws if they so choose. Further, principles of federalism are less implicated by allowing a more generous altering rule. Setting corporate rules is a traditional state power. The problem is that states, eager to attract businesses, create rules with a managerial bias. It is managers, not shareholders, that decide the state of incorporation. While the federal government has arguably acted to protect shareholders,  allowing parties to voluntarily change the default rule would be less intrusive to state power. The article concludes that while the change to the default rule improves the previous no-proxy-access rule, the best altering rule would allow shareholders to propose an amendment to alter the rule if they so chose.