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Jayson Ahern, Deputy Commissioner, U.S. Customs and Border Protection, recently posted a blog entry at the Department of Homeland Security's site. In it, Mr. Ahern takes issue with the criticism that has been level against Customs and Border Protection ("CBP") in light of the news that they've been routinely nabbing laptops and other electronic devices, imaging the full contents, and sharing those contents with other agencies. It's a tired refrain of the typical DHS line: 1) we're at risk; 2) we've always been doing it, anyway, and you just didn't know about it; and 3) the courts say it's okay, so that makes it okay.
Leadership Journal: Answering Questions on Border Laptop Searches:
First, it’s important to note that for more than 200 years, the federal government has been granted the authority to prevent dangerous people and things from entering the United States. Our security measures at the border are rooted in this fundamental fact, and our ability to achieve our border mission would be hampered if we did not apply the same search authorities to electronic media that we have long-applied to physical objects--including documents, photographs, film and other graphic material.
Who knew that documents, photographs, film, and other material constituted "dangerous things?" Those things aren't dangerous, of course, and to characterize them as such is the way of the simple, who have no reasoned explanations for their mindless actions. Might those items contain information that might be used to commit harm? Probably. However, it is people acting, not the things in their possession, that cause harm and create dangers. That's true whether the items contain child pornography, bomb making plans, or obscene comic books.
In the 21st century, terrorists and criminals increasingly use laptops and other electronic media to transport illicit materials that were traditionally concealed in bags, containers, notebooks and paper documents. Making full use of our search authorities with respect to items like notebooks and backpacks, while failing to do so with respect to laptops and other devices, would ensure that terrorists and criminals receive less scrutiny at our borders just as their use of technology is becoming more sophisticated.
So, to, do many law abiding Americans and aliens, who might like "to be secure in their persons, houses, papers, and effects." The difference is one of need. In this modern era of electronic media, there's little reason to feel threatened by the transport of a laptop. There are countless smarter, more efficient ways that a devious criminal would find to migrate that data across the border. In fact, a laptop with a spinning hard drive is perhaps one of the worst. It's the clear electronic devices that are the least threatening.
The agency would be better off not lying to the American people and fully explaining what this is: a fishing expedition. Grab laptops and these other electronic devices, create images, and then use them either in the coming copyright enforcement battles or to simply watch and hope for the appearance of incriminating data.
This brings me to my third point, which is that travelers whose laptops are searched represent a very small number of people. As Secretary Chertoff noted in a recent op-ed,
"Of the approximately 400 million travelers who entered the country last year, only a tiny percentage were referred to secondary baggage inspection…[and] of those, only a fraction had electronic devices that may have been checked.”This number is less than one percent of people entering the United States. Contrary to some media accounts, we’re not rolling out a new strategy and screening an exorbitant number of travelers. We’re simply following a common sense border policy that has been in place for years, and has been reaffirmed by the courts.
Unless they're horribly misstating their case, there is a "common sense" policy that permitted the CBP to search the electronic devices of up to 4 million people entering the United States last year. One percent may, indeed, be a small percentage. However, 4 million people is not a small number of people.
I hope this has helped answer some of your questions. One of the lessons 9/11 taught us was that we must adapt to 21st century risks and anticipate rather than react to new threats. Our CBP officers are on the front lines every day ensuring that these lessons are heeded. We trust that travelers understand the need for these sensible security measures.
"One of the lessons 9/11 [has] taught" the rest of us is that those in power will use 9/11 as a ready justification for any unwarranted intrusion into the privacy of Americans and the expansion of governmental power and knowledge. Can Mr. Ahern look at the mirror after trotting out this 9/11 crap to support his points? More importantly, if this has been long-standing policy, backed by more than 200 years of authority, as he asserts in the posting, shouldn't we have better lessons than 9/11? What laptops with plans slipped through prior to 9/11 that permitted it to occur?
None, would be my guess.
This is my second day back at work since the bar exam. I came in Friday, but things were generally dead. It's not dead today.
I have not been keeping count of the number of people who ask me how I did on the bar exam. I'm not entirely sure how I wish to answer such questions. I've settled on, "I think I did well enough to pass." Does that sufficiently hedge?
I just made the mistake of reading someone's breakdown of questions and issues, which suggests that I missed more issues that I had originally believed. In particular, it appears that perhaps my Question #3 and Question #5 were weaker than I had originally believed.
Oh, man. It's going to be a long wait until November 21.
Every now and then, I take some ribbing for the "Friends" references I make. But today, at blawgging heavyweight Concurring Opinions, I find I'm not the only one.
Concurring Opinions: Put Your Hands Together:
In an episode of Friends, Joey, a notorious womanizer, is eating fresh-made jam directly from the jar. Chandler says, "Hey, Joe. I gotta ask. The girl from the Xerox place--buck naked [holding up one hand], or [holding up the other hand] a big tub of jam?" And Joey says, "Put your hands together." That is how I feel about movies and tax. Put your hands together! Lucky for me, such a fantasy place does exist: movie tax credits.
Granted, in this post, Prof. Lawsky provides a little more context than I might typically provide in my "Friends" references. There probably aren't enough "Friends" geeks in my readership for many to understand the reference here, for instance.
Regardless, I'm just hoping this is a sign of the practice taking off. Soon, such references will be common and meaningful to all!
If you look at the glass as half-empty, there's no surprise when you run out of Diet Coke.
I allowed myself to get lulled into believing I'd graduated magna cum laude, which at USF is the top 5% of the graduating class. I allowed this to happen because the percentile charts put me in the top 5% at the end of the semester. I tried to remind myself (and others) of how the glass was half-empty. Because not everyone who is a 3FT, 4FT, or 4PT graduated, not everyone would be calculated in the numbers. In addition, I wasn't sure if December 2007 grads were included in the spring numbers.
At this point, I'm pretty sure they weren't. Peters and Alexander, I'm holding you two responsible for my current malaise. I imagine that neither of you were included in the 3.54 cutoff, so when you two were added back in, I got bumped out with my 3.54 (the final cutoff was 3.55.)
Part of the problem is that I kept raising my standards. When I started law school, I declared I'd be thrilled to graduate cum laude. Now I have, and I'm disappointed, which is somewhat pathetic. So be it.
Let me just conclude by mentioning how heartily I wish to congratulate my friend Tarek Sorensen, who made not only my recent bar studying, but all of law school more bearable. Having not raised his expectations, he was completely confused when I called him and started shouting "Summa!" into the phone.
Three more essays, one more (seemingly) straightforward performance test, and the 2008 July California Bar Exam is done. Now, I just have to wait until November 21 for results.
And now, I guess I've got to do something about this blog. The title no longer really fits.
California bar exam day 2. Yay!
Day 2 is the Multistate Bar Exam ("MBE"), a 200-question multiple choice exam given in two 3-hour parts. It's a tough patch of work, but nowhere near as exhausting as a performance test like yesterday's. I feel a whole lot better today post-exam than I did yesterday. On the other hand, the MBE's also a crapshoot. I felt pretty good about some areas that had given me problems before (mortgages!), but as often occurs on the MBE, you find yourself down to 2 correct questions and must choose the "best" response. I've been convinced by a friend that on at least one of those questions, I chose incorrectly.
I use one of the time management techniques suggested by Professor Sakai (a USF prof, and one of the Bar/Bri lecturers) to split the questions into blocks of 20, based on the size of the vertical columns on the answer sheet. I budget 33 minutes per column, which leaves me with 15 minutes of buffer. In the morning, I was running around 7 minutes behind going into the last block of 20. In the afternoon, I had 55 minutes remaining going into the last block of 20. Go figure. It's all meaningless until I find out whether I pass or fail.
One more day to go. There's plenty of anxiety about the remaining areas to be tested on the essay tomorrow. There's also lots of speculation that after the basic performance test we got yesterday that tomorrow's may be harder. I'm not too bothered by that -- we had some toughies thrown at us in Legal Drafting, and I did best on those ones. However, there's always the possibility of not doing best on those, and that's just losing the free points that should come from the performance tests.
A bar taker breaks down the mechanics.
Day One Down, Feels Like Two :
Anyway, the test. In all the stuff I read beforehand, from various sites on the web, and in everything people told me, nobody really said what the exam is actually like, down to the nitty-gritty details. So I thought it might be helpful for some people to explain how it all goes down.
Other locations may be a little different. (E.g., in Los Angeles this morning there was an earthquake—a friend sent me a text message and said chandeliers were swinging and people were screaming during the third essay question). Here’s how it went down in San Mateo, July 2008.
It's a good run-down of the process. It's pretty much how it worked for us at the Oakland Convention Center, other than our absence of a huge parking lot; most people here are staying at the Marriott or across the street (where I am with hideous Internet service) at the Courtyard.
Others were smart and scoped the place out ahead of time. I just read the instructions and figured I'd figure it out.
The person next to me on my right hurt her back last week, so she's constantly adjusting herself. I've found the chair I'm on is (surprisingly) comfortable for about 2 hours, after which time I crush the cushion under my mass and my tailbone suffers and I start shifting.
And at the rate we're going, we're going to spend almost 3 hours just listening to instructions and announcements over the three days.
The California bar exam is a three-day trial of one's patience. I just finished day one.
Today, like Thursday will be, was split into morning and afternoon sessions of essays. In the three-hour morning session of both days, we have three essays on substantive areas of law. In the three-hour afternoon session, we have the "performance test," which is hard to explain.
I thought this morning's essays were relatively straightforward, though the third, a contracts question, gave me more fits than I anticipated such a question would. I thought I had put my contracts difficulties behind me. The three questions potentially covered (and ostensibly, eliminated from possibility Thursday) three areas of law. However, I'm not sure that the second question was truly a cross-over or not.
The performance test was straightforward enough to make me worry that I did something horribly wrong. Time will tell on that one.
Finally... Sheesh. It seems like two days have passed in less than one full day. But half the hard part (the essays) is over. Bring on the MBEs.
Today's it. Day 63 of bar review. Ready or not, the bar exam is tomorrow.
I wish I could tell whether or not I'm ready. Every conversation seems to bring up some rule I don't know -- or haven't even heard of. On the plus side, I'm not always the one at a loss. "If you don't know it, fake it." That's the aim. Here's hoping I hit the target.
I'm kind of looking forward to going back to work on Friday.
The question I keep going over in my head: Is there something I would not be able to write some sort of essay response on?
Short answer: I don't think so. Longer answer: I worry about freezing up.
During this process, we've seen nothing but very good essays as answer exemplars. I really want to know what a 55 looks like, what a 65 looks like, and what a 75 looks like. I feel that seeing only 80s or 85s (or whatever they are, since we don't know) makes it too hard to know what we should do when we fake it.
Or, maybe I actually don't want to know. I sure think I do, though.
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