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Sharyl Attkisson Lawsuit Against Rod Rosenstein Claiming She Was Hacked By Government Tossed

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Remember Sharyl Attkisson? If not, she is a former CNN and CBS journalist who made something of a name for herself both in reporting on the Obama administration, often critically, as well as for accusing that same administration of hacking into her computer and home network. Whatever you think of her reporting, her lawsuit against Eric Holder and the Justice Department over the hacking claims was crazy-pants. Essentially, she took a bunch of the same technological glitches all of us deal with on a daily basis -- flickering television screens, a stuck backspace key on her computer -- and wove that into a giant conspiracy against her and her reporting. She made a big deal in the suit, and her subsequent book on the matter, over some "computer experts" she relied on to confirm that she was a victim of government hacking, except those experts remained largely anonymous and were even, in some cases, third party people she'd never met. For that and other reasons related to how quickly she managed to do initial discovery, the case was tossed by the courts in 2019.That didn't stop Attkisson's crusade against the government, however. In 2020, she filed suit against Rod Rosenstein, again accusing the government of spying on her and her family. To back this up, she again relied on an anonymous source, but that source has since been revealed. And, well...

The source was initially anonymous but later identified by Attkisson’s attorneys as Ryan White, an alleged former FBI informant. White is a QAnon conspiracy adherent who appears to have been the source of bizarre child-abuse allegations that Georgia attorney Lin Wood leveled at Chief Justice John Roberts last year, according to a report in the Daily Beast.
And so here we are yet again, with an extremely serious claim lodged against the federal government that relies on the tinfoil hat crowd as "evidence." In addition, Attkisson lays out again the computer and network hacking claims, with a named "computer forensic" expert who apparently told her that there was spyware on her machine, that they had logs for where these breaches originated (such as a Ritz Carlton hotel), and that the tools used for all of this appeared to be the sort typically only available to government actors. And here too, just as in her original lawsuit, there are tons of details and claims that reveal that, like so many other conspiracy theories, there is a duality problem. Namely, that the federal government is so nefarious and great at hacking that they completely compromised nearly every machine Attkisson used at work and at home, but that same federal government was too stupid to mask the IP address from which it launched these attacks.For example, her suit claims that these attacks were originally launched from the United States Postal Service in Baltimore, where some staff involved in infiltrating The Silk Road worked. The contention of her Qanon witness is that the spying on Attkisson somehow happened as an offshoot of a multi-agency task force against dark web dealings. And to believe all of that, you again have to believe that the government's l337 h4x0rs didn't bother to cover their USPS tracks.But those are conversations about the merits of Attkisson's case. We don't really need to get that far, because her suit has again been tossed on essentially procedural grounds.
Bennett, an appointee of President George W. Bush, also ruled that there was inadequate indication that any surveillance of Attkisson involved activities in Maryland, which Bennett’s court has jurisdiction over.“The Amended Complaint is devoid of any factual allegations with respect to actual conduct related to the alleged surveillance which occurred in Maryland,” Bennett wrote in his 20-page decision, issued on Tuesday. “The conclusory statements that the alleged surveillance was performed by individuals in Maryland, unsupported by any factual allegations, lie in contrast to the Plaintiffs’ numerous assertions regarding conduct performed and events which occurred in the Eastern District of Virginia.”
So, on the one hand, it's not as if the court is saying that Attkisson's claims are nonsense. And maybe this will lead to her refiling her lawsuit in the proper jurisdiction. On the other hand, it doesn't inspire a great deal of confidence in the merits of her claims or her legal team that they can't even get the case filed in the correct jurisdiction.So, do I think this is the last we'll hear from Sharyl Attkisson's lawsuits over the supposed hacking of all her things? No, I doubt it. After all, she must certainly have another book to write and promote soon.

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posted at: 12:00am on 23-Mar-2021
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It's The End Of Citation As We Know It & I Feel Fine

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Legal scholarship sucks. It's interminably long. It's relentlessly boring. And it's confusingly esoteric. But the worst thing about legal scholarship is the footnotes. Every sentence gets one1. Banal statement of historical fact? Footnote. Recitation of hornbook law? Footnote. General observation about scholarly consensus? Footnote. Original observation? Footnote as well, I guess.It's a mess. In theory, legal scholarship should be free as a bird. After all, it's one of the only academic disciplines to have avoided peer review. But in practice, it's every bit as formalistic as any other academic discipline, just in a slightly different way. You can check out of Hotel Academia, but you can't leave.Most academic disciplines use peer review to evaluate the quality of articles submitted for publication. In a nutshell, anonymous scholars working in the same area read the article and decide whether it's good enough to publish. Sounds great, except for the fact that the people reviewing an article have a slew of perverse incentives. After all, what if the article makes arguments you dislike? Even worse, what if it criticizes you? And if you are going to recommend publication, why not insist on citations to your own work? After all, it's obviously relevant and important.But the problems with peer review run even deeper. For better or worse, it does a pretty good job of ensuring that articles don't jump the shark and conform to the conventional wisdom of the discipline. Of course, conformity can be a virtue. But it can also help camouflage flaws. Peer review is good at catching outliers, but not so good at catching liars. As documented by websites like Retraction Watch, plenty of scholars have sailed through the peer review process by just fabricating data to support appealing conclusions. Diederik Stapel, eat your heart out!Anyway, legal scholarship is an outlier, because there's no peer review. Of course, it still has gatekeepers. But unusually, the people deciding which articles to publish are students, not professors. Why? Historical accident. Law was a profession long before it became an academic discipline, and law schools are a relatively recent invention. Law students invented the law review in the late 19th century, and legal scholars just ran with it.Asking law students to evaluate the quality of legal scholarship and decide what to publish isn't ideal. They don't know anything about legal scholarship. They don't even know all that much about the law yet. But they aren't stupid! After all, they're in law school. So they rely on heuristics to help them decide what to publish. One important heuristic is prestige. The more impressive the author's credentials, the more promising the article. Or at least, chasing prestige is always a safe choice, a lesson well-observed by many practicing lawyers as well.Another key heuristic is footnotes. Indeed, footnotes are almost the raison d'etre of legal scholarship. An article with no footnotes is a non-starter. An article with only a few footnotes is suspect. But an article with a whole slew of footnotes is enticing, especially if they're already properly Bluebooked. After all, much of the labor of the law review editor is checking footnotes, correcting footnotes, adding footnotes, and adding to footnotes. So many footnotes!Most law review articles have hundreds of footnotes. Indeed, the footnotes often overwhelm the text. It's not uncommon for law review articles to have entire pages that consist of nothing but a footnote.It's a struggle. Footnotes can be immensely helpful. They bolster the author's credibility by signaling expertise and point readers to useful sources of additional information. What's more, they implicitly endorse the scholarship they cite and elevate the profile of its author. Every citation matters, every citation is good. But how to know what to cite? And even more vexing, how to know when a citation is missing? So much scholarship gets published, it's impossible to read it all, let alone remember what you've read. It's easy to miss or forget something relevant and important. Legal scholars tend to cite anything that comes to mind and hope for the best.There's gotta be a better way. Thankfully, in 2020, Rob Anderson and Trent Wenzel created ScholarSift, a computer program that uses machine learning to analyze legal scholarship and identify the most relevant articles. Anderson is a law professor at Pepperdine University Caruso School of Law and Wenzel is a software developer. They teamed up to produce a platform intended to make legal scholarship more efficient. Essentially, ScholarSift tells authors which articles they should be citing, and tells editors whether an article is novel.It works really well. As far as I can tell, ScholarSift is kind of like Turnitin in reverse. It compares the text of a law review article to a huge database of law review articles and tells you which ones are similar. Unsurprisingly, it turns out that machine learning is really good at identifying relevant scholarship. And ScholarSift seems to do a better job at identifying relevant scholarship than pricey legacy platforms like Westlaw and Lexis.One of the many cool things about ScholarSift is its potential to make legal scholarship more equitable. In legal scholarship, as everywhere, fame begets fame. All too often, fame means the usual suspects get all the attention, and it's a struggle for marginalized scholars to get the attention they deserve. Unlike other kinds of machine learning programs, which seem almost designed to reinforce unfortunate prejudices, ScholarSift seems to do the opposite, highlighting authors who might otherwise be overlooked. That's important and valuable. I think Anderson and Wenzel are on to something, and I agree that ScholarSift could improve citation practices in legal scholarship.But I also wonder whether the implications of ScholarSift are even more radical than they imagine? The primary point of footnotes is to identify relevant sources that readers will find helpful. That's great. And yet, it can also be overwhelming. Often, people would rather just read the article, and ignore the sources, which can become distracting, even overwhelming. Anderson and Wenzel argue that ScholarSift can tell authors which articles to cite. I wonder if it couldn't also make citations pointless. After all, readers can use ScholarSift, just as well as authors.Maybe ScholarSift could free legal scholarship from the burden of oppressive footnotes? Why bother including a litany of relevant sources when a computer program can generate it automatically? Maybe legal scholarship could adopt a new norm in which authors only cite works a computer wouldn't flag as relevant? Apparently, it's still possible. I recently published an essay titled Deodand. I'm told that ScholarSift generated no suggestions about what it should cite. But I still thought of some. The citation is dead; long live the citation.Brian L. Frye is Spears-Gilbert Professor of Law at the University of Kentucky College of Law

1. Orin S. Kerr, A Theory of Law, 16 Green Bag 2d 111 (2012). (It is a common practice among law review editors to demand that authors support every claim with a citation. These demands can cause major headaches for legal scholars. Some claims are so obvious or obscure that they have not been made before. Other claims are made up or false, making them more difficult to support using references to the existing literature.).


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posted at: 12:00am on 23-Mar-2021
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