A New Beginning

Legal theory needs a new beginning.  Over the past few years, I have watched, largely as an observer, as the information technology revolution has come to law. Sure, its been coming for a long time, but over the past few years the changes have become unavoidably obvious, even to the most dower disbelievers. It’s here now, and like the titanic waves of the ocean, it is reshaping the landscape of the law and its role in society.  The waves of change are harbingers of the future of law, which promises greater social justice by aiding in redistribution of power and wealth through access to justice and new economic alliances. But, it also holds the potential for unbalancing the structures of democracy, encouraging faction, and distorting democratic discourse. The changes occuring now undermine traditional communities, even as they encourage new forms of sociality that scarcely resemble the familiar and seem to limit the day-to-day quotidian acts of courtesy and kindness that have long been viewed as building blocks of civil society.

Tracking changes like these and commenting on their meaning seems to be the natural work of legal philosophers. Understanding the philosophical implications of law in an information society entails investigation into the informational nature of law as it has traditionally existed, and speculative consideration of the possibilities for its future.  Even more significant, perhaps, is the need for competent normative guidance. Philosophical ethics has much to offer in the analysis of the present moment in legal philosophy.  Beyond the positivist description of law, a new generation of legal philosophers are recovering normative jurisprudence, freed from natural law theories rooted in naive medieval metaphysical realism, to consider anew the foundations of morality that are capable of guiding law and communities into the future. (For example, see Robin West, Normative Jurisprudence: An Introduction (2011)).

The current state of affairs in legal philosophy has left it ill-equipped to take on these tasks, despite the obvious need.  Two features of Anglophone legal philosophy contribute to this impasse. The first is legal positivism, which has two interelated foundational claims made by Thomas Hobbes and David Hume, respectively: that law is what ever the legitimate authority has promulgated; and that a normative claim cannot be derived from factual propositions. Ultimately, both claims are captured in the claim that law is determined by social facts. Although this basic claim of positivism has taken many forms, the influence of the philosophers that Richard Rorty identified with the “linguistic turn” (notably Russell, Moore, and Wittgenstein in the UK, and Quine in the US), left a legacy that today is recognizable in the lineage of John L. Austin, HLA Hart (and even the natural law philosopher, John Finnis), which marks the mainstream of Anglophone legal philosophy.  That mainstream is defined by elements of coherentist epistemology and  conceptual analysis that have earned this label of “analytic” jurisprudence for the Anglophone tradition. Its current shape has been defined by philosophers like Brian Leiter, Dennis Patterson, and Brian Bix,  who collectively have done much to set the agenda of American legal theory. Of course, sociologists, like Brian Tamanaha, have contributed to legal philosophy as well by challenging the philosophers’ methods and conclusion, but if there is a mainstream of American jurisprudence today, it is defined more by the analytic philosophy of law than by any other approach. (On this view, for example, Hans Kelsen is not mainstream because, although agrees with legal positivism, he derives his theory more from Kantian sources than do the Anglophone theories.)

Despite its broad acceptance, analytic jurisprudence no longer meets the needs of contemporary legal theories. The epistemological concerns of the linguistic turn are increasingly irrelevant in the contemporary era. Neither the naturalistic turn described by Quine and applied by Leiter nor the “post-modern” Wittgensteinianism defended by Patterson, are capable of explaining the informational nature of law or providing normative guidance for the evolving informational environment in which law is both operative agent and outcome.  This means that the legal philosophers have left the field to sociologists, who are making gains, particularly in empirical legal research. As impressive as these are, sociology alone cannot displace philosophy, nor can it “position” philosophical discourse as a second-order analysis. I will have much more to say about this later, but for now, let me rest on an obvious observation that philosophy deals with foundational concepts and presuppositions, including those of the social sciences. A part of its work involves holding the sciences to the limits of those foundations. The information revolution rests on foundations that are new for law. A part of the work of the legal philosopher is to act as an engineer who specializes in understanding the new concepts and is capable of creating new conceptualizations and new possiblities for understanding.  New philosophical concepts  have enormous significance for legal theorizing. The way ahead for legal philosophy, I believe, lies in the philosophy of information, which I understand to be the attempt to understand the significance of the information revolution for traditional philosophical questions.


Natural Law Redoux

The Gorsuch nomination provides a good opportunity to write about something that’s been on my mind for a while, the so-called “new natural law.”  I know that some of the defenders of the Finnis project dislike that name because, like Finnis, they believe that there is nothing new about it. The Natural Law of Aquinas is not that different from the Natural Law of Finnis, they claim, because they both are practical reason that proceeds from self-evident claims that Finnis calls “basic goods”, which are  intuitions that are not derived from theoretical (metaphysical) claims.  I have not bought into that argument because it is obviously false if one considers the foundational claims of the two theories.

The separation of fact and value that Finnis accepts as given was a modern development that antedates Aquinas by several centuries. The separation of fact and value as distinct types of claims would not have been possible for him. The nature of a moral teleology merges fact and moral purpose. Aquinas believed that knowledge of the moral purpose of a thing is understood through the act of perception. In Finnis’ commentary of Aristotle’s de Anima, he makes that point unambiguously. Perception is a faculty of the mind whereby the form of the thing perceived is copied into the mind. Aquinas’ naive realism follows Aristotle in believing  that the mind gains knowledge of the formal essence of the thing perceived and thereby its moral teleos. Finnis denies precisely this by accepting the fact/value dichotomy and attributing it to Aquinas’s distinction between spectulative and practical. This is interesting today because Gorsuch studied Finnis and was presumably influenced by him.  I admittedly have not yet delved into his legal philosophy, but I will be looking for this move in it.

It seems to me that the intuitions that Finnis identifies as Basic Goods are drawn from  different levels of abstraction and operate at different levels from the the types of claims that are made in the law. This demands some consideration. Let’s take friendship as an example. Friendship is a basic good, such that no rational person could deny that it is good in itself. That’s Finnis’ claim. But, neither “friend” nor “good” are self-interpreting concepts. What is a friend? There have always been debates about this question. What constitutes a true friend? What can one hope for one’s friends? What can a friendship achieve?  And, so on.  And the “good” is even more vague. If the good is an absolute judgment–that it is some universal destination of category against which all concepts might be judged–then it would seem to contain a much larger set of possiblities than the term Friend. A friend is some sort of judgement about a person. The good is an absolute moral category. So, then to say that the membership of Friend in the set of things that are Good is an immediate intuition, begs the question: how is this intuition possible? How does one come to know that a Friend belongs in the set of Good things? Finnis says it is an immediate intuition. But, this is not much of an answer.

He is quick to argue that the Basic Goods cannot be derived. And, so we will grant him that this knowledge does not arise through a priori reasoning. Presumably it is an a posteriori judgement that one has from having had Friends and some familiarity with the Good. But, how do these experiences happen? To judge someone a friend, one must have already a concept of friend and some notion of how to use that concept. And, to assign the concept Friend to the category of Good, one must have some concept of Good and know its ordinary use. That is to say, the immediate intuition is possible only because of a semantic system of meaning that already presupposes it.  On this reading, then, the Basic Goods are in fact artifacts of a system of semantic meaning. This was, of course, what Neurath and Quine argued. And, what Wittgenstein developed into his anti-philosophy. Viewed in this light, Finnis is veiling a cultural conservatism behind a claim of self-evidence. The New Natural Law simply justifies maintaining the cultural norms and power relations.

This is not to say that law is indifferent to moral purposes. Indeed, I think that legal theory needs to recover some moral foundation for judging purposes and that the lack of the ability to speak about moral purpose and human nature has greatly hampered the effectiveness of the rule of law and undermined the foundations of the American democracy.  But, simply accepting the traditional cultural norms is precisely what cannot be done in a period of enormous cultural and technological change. We need to do better. I am looking forward to delving into Gorsuch’s legal philosophy, but I suspect that he will not have overcome these shortcomings.

As a footnote, let me add that Jean Porter’s sorry work on jurisprudence is much weaker than Finnis’. She too accepts Hart as a starting point and does not appreciate the epistemological issues between Hart and the natural law. And, since she lacks legal knowledge which Finnis has, her work also lacks clear examples and the a posteriori judgments that might have led a better thinker to make more sound analysis.

Cloud Computing at Conflicts of Law

Highly Recommended:

Vivek Krishnamurthy “Cloudy with a Conflict of Laws”


As more and more of our lives are lived online, so too are those who live lives of crime. Like everyone else, criminals of all stripes are increasingly using online services of all kinds to plan and commit their wrongful acts. Evidence of crime that not so long ago was on-the-ground and physical is now increasingly in-the-cloud and digital. All this has thrown the law parcelling the authority to search and seize among different jurisdictions into confusion, as clouds of data — like those in the sky — are everywhere and nowhere at once. Unless some clarity is brought to this situation and soon, the future of cloud computing as a unified global phenomenon may be hazy indeed.

This paper describes how the fractal complexity of cloud computing’s physical geography has fractured the system of Mutual Legal Assistance Treaties (MLATs) that arose during the jet age to help shuttle evidence of crime across borders. It explains why the territorially-based MLAT system fundamentally doesn’t work with the physical, technological, and corporate structures that are used to deliver cloud-based services, and how the resulting problems threaten their continued global nature. It highlights the role played by US laws, companies, and government institutions in exacerbating these difficulties that, ironically, have now been visited on the US government itself in the Microsoft Ireland case. It then finally sketches some elements of a potential solution based on principled US leadership that recognizes the legitimate interests of other governments.

This paper is hardly the first to examine what’s wrong with the MLAT system or what should be done to fix it. Since the Microsoft Ireland case first started to make headlines nearly two years ago, there has been a flurry of writing on this issue from a range of perspectives. What I hope this paper will contribute is a fuller description of why the MLAT system and cloud computing as we know them are fundamentally irreconcilable, and what are the minimum requirements of an alternative regime that can prevent the splintering of these services along national geographic lines.

This paper has grown out of my participation first in a symposium on this issue hosted here at the Berkman Center for Internet & Society in June 2015, which was generously supported by the MacArthur Foundation and Microsoft Corporation, and then by my ongoing involvement in an ad-hoc Cross-Border Data Requests (CBDR) working group of US-based stakeholders that is devising solutions to the problems my paper discusses. My views on this topic are entirely my own and do not represent those of the Berkman Center, the participants in and sponsors of the June 2015 event, or my CBDR co-collaborators — all of whom I thank for informing and inspiring this work.


Apple v. FBI – Part I

The recent controversy between Apple and the FBI has attracted a good deal of attention among the talking classes. Some of the best coverage came from Fortune, who ran this useful roundup of opinions. And, the PBS show, Frontline, ran this debate  between James Andrew Lewis, director of the strategic technologies program at the Center for Strategic and International Studies, and Nate Cardozo, a staff attorney at the Electonic Frontier Foundation. In Part I of this series, I will describe the background of the issue. Part II will offer some analysis.

The Government’s Request

The conflict between Apple and the FBI began on February 16, 2016, when a US Attorney applied to a federal magistrate judge for an order compelling Apple to assist the FBI in its investigation of a cell phone found in the black Lexus driven by Syed Rizwan Farook and his wife, Tafsheen Malik, the suspects in the December 2, 2015, massacre in San Bernardino, California. The subject device was owned by Farook’s employer, the San Bernardino County Department of Public Health (“SBCDPH). The government had seized the iPhone and had repeatedly attempted to obtain information from it. According to the supporting documents, the Supervisory Special Agent (SSA) handling the investigation of the iPhone believes that Apple has been providing assistance to the FBI by turning over iCloud backups of the phone’s contents. From these backups, it appears that Farook used the phone to talk with Malik between July and November 2015. And, he also used it to speak with some victims of the shootings. The SSA believes that

There may be revelant, critical communications and data on the subject device around the time of the shooting which has thus far not been accessed, may reside solely on the subject device, and cannot be accessed by any other means known to either the government or Apple.

According to the SSA, the requested assistance of Apple is to provide the FBI with a “signed iPhone Software file, recovery bundle, or other Software Image File (SIF) that can be loaded onto the subject device.”

The SIF would load and run from Random Access Memory (RAM) and would not modify the iOS on the actual phone, the user data partition or system partition on the device’s flash memory. The SIF would be coded by Apple with a unique identifier of the phone so that the SIF would only load and execute on the subject device. Since Apple’s software currently has the capability to query hardware for unique identifiers (serial numbers, ECID, IMEI, etc.), the SIF could be created to only function on the Subject Device, which would mitigate any perceived security risk to Apple iOS software. The SIF would be loaded via Device Firmware Upgrade (DFU) mode, recovery mode, or other applicable mode available to the FBI.

This SIF would allow the FBI to bypass the self-deleting procedure which the iPhone would initiate after ten unsuccessful attempts to enter the user passcode. This would allow the FBI to determine the passcode by sheer brute force.

According to the Washington Post, the need for this request was caused by a misstep early in the investigation:

In the chaotic aftermath of the shootings in San Bernardino, Calif., in December, FBI investigators seeking to recover data from the iPhone of one of the shooters asked a technician in the California county to reset the phone’s iCloud password.

But that action foreclosed the possibility of an automatic backup to the Apple iCloud servers that might have turned up more clues to the origins of the terrorist attack that killed 14 people.

“The county and the FBI were working together cooperatively to obtain data, and at the point when it became clear the only way to accomplish the task at hand was to reset the iCloud password, the FBI asked the county to do so, and the county complied,” David Wert, a spokesman for San Bernardino County, said in an email.

The magistrate judge’s order directing Apple to assist  came about a week after FBI Director James B. Comey told Congress that the bureau has not been able to open the phone. In testimony before Congress, he said: “It has been two months now, and we are still working on it.” He characterized Apple as refusing to comply with a search warrant.

Apple’s Response

Apple has promised to resist the Government’s motion.

In his letter to customers, Apple CEO Tim Cook characterized the FBI request this way:

We have great respect for the professionals at the FBI, and we believe their intentions are good. Up to this point, we have done everything that is both within our power and within the law to help them. But now the U.S. government has asked us for something we simply do not have, and something we consider too dangerous to create. They have asked us to build a backdoor to the iPhone.

He describes the SIF as asking Apple to “make a new version of the iPhone operating system.” He describes it this way:

Specifically, the FBI wants us to make a new version of the iPhone operating system, circumventing several important security features, and install it on an iPhone recovered during the investigation. In the wrong hands, this software — which does not exist today — would have the potential to unlock any iPhone in someone’s physical possession.

The FBI may use different words to describe this tool, but make no mistake: Building a version of iOS that bypasses security in this way would undeniably create a backdoor. And while the government may argue that its use would be limited to this case, there is no way to guarantee such control.

The threat, Cook contends, is that “Once created, the technique could be used over and over again, on any number of devices.” As he explains,  “In the physical world, it would be the equivalent of a master key, capable of opening hundreds of millions of locks — from restaurants and banks to stores and homes. No reasonable person would find that acceptable.” This has been described as a “backdoor” for Government to gain access to the contents of anyone’s phone.

The All Writs Act

The Government argued, and the magistrate judge agreed, that the authority for the order compelling Apple to assist the FBI investigation was found under the All Writs Act, 28 USC section 1651 (a)., which provides that “all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” The Government argued that based on the authority given to courts by Congress under this act, the court can “require a manufacturer to assist in accessing a cell phone’s files so that a warrant may be executed as originally contemplated.” So, since the original search warrant authorized getting to private information on the subject phone, the court should, under the All Writs Act, have the authority to compel Apple.

Cook stated Apple’s concern about using the All Writs Act:

The implications of the government’s demands are chilling. If the government can use the All Writs Act to make it easier to unlock your iPhone, it would have the power to reach into anyone’s device to capture their data. The government could extend this breach of privacy and demand that Apple build surveillance software to intercept your messages, access your health records or financial data, track your location, or even access your phone’s microphone or camera without your knowledge.

Their view is essentially that the magistrate court, which does not get its authority under Article III of the Constitution, but only by an act of Congress, should not have the authority to order what would, in Apple’s view, be a major change in the privacy rights of iPhone users, under an act that simply gives authority to issue writs to aid in the compliance with search warrants. A more full-throated analysis of all relevant issues is needed.

The Trump Moment

Campaigning in South Carolina, Republican Presidential Candidate Donald Trump weighed in against Apple. At a rally in Pawleys Island, Trump said: “Boycott Apple until they give up the information.” He characterized the dispute this way, “The [subject] phone is owned by the [San Bernardino] government….Tim Cook is looking to do a big number probably to show how liberal he is. Apple should give up.”

Later, in a telephone interview, he added “Tim Cook is living in the world of the make believe…. I would come down so hard on him — you have no idea — his head would be spinning all of the ways back to Silicon Valley.”

Neither Apple nor the Government has commented on Trump’s boycott. None of the other presidential candidates have commented on this controversy.


AI and Law Academic Papers

Here i s  paper worth reading:

Harry Surden, “Machine Learning and the Law”

This Article explores the application of machine learning techniques within the practice of law. Broadly speaking “machine learning” refers to computer algorithms that have the ability to “learn” or improve in performance over time on some task. In general, machine learning algorithms are designed to detect patterns in data and then apply these patterns going forward to new data in order to automate particular tasks. Outside of law, machine learning techniques have been successfully applied to automate tasks that were once thought to necessitate human intelligence — for example language translation, fraud-detection, driving automobiles, facial recognition, and data-mining. If performing well, machine learning algorithms can produce automated results that approximate those that would have been made by a similarly situated person.

This Article begins by explaining some basic principles underlying machine learning methods, in a manner accessible to non-technical audiences. The second part explores a broader puzzle: legal practice is thought to require advanced cognitive abilities, but such higher-order cognition remains outside the capability of current machine-learning technology. This part identifies a core principle: how certain tasks that are normally thought to require human intelligence can sometimes be automated through the use of non-intelligent computational techniques that employ heuristics or proxies (e.g., statistical correlations) capable of producing useful, “intelligent” results. The third part applies this principle to the practice of law, discussing machine-learning automation in the context of certain legal tasks currently performed by attorneys: including predicting the outcomes of legal cases, finding hidden relationships in legal documents and data, electronic discovery, and the automated organization of documents.