A member of the electoral college—an associ-ation of voters elected by the populace of each state and the District of Columbia—which convenes every four years to select the president and
Trang 1Robbin Stewart was stopped for speeding as he
returned from voting in a primary election
Stewart argued that the case against him should
have been dismissed because Article VIII,
Section 4, of the Missouri Constitution
provid-ed that voters“should be privileged from arrest
while going to, attending and returning from
elections, except in case of treason, felony or
breach of the peace.”
The Missouri Court of Appeals for the
Western District rejected Stewart’s argument
The appeals court noted that in the past, the
Missouri Committee on Suffrage and Elections
had entertained the idea that the clause cited by
Stewart should apply to primary elections as
well as general elections, and that the committee
had refused to adopt the expansion In a
footnote, the court advised that the U.S
Supreme Court had construed the phrase
“treason, felony or breach of the peace” as
including all criminal offenses (Williamson v
United States, 207 U.S 425, 28 S Ct 163, 52 L
Ed 278[1908]) Such a reading would seem to
nullify the objective of Missouri’s constitutional
clause Nevertheless, the existence of such an
election-day privilege is a testament to the
importance of free elections in the United
States
The 2000 presidential election was one of
the most controversial in U.S history, where
GEORGE W BUSH won the election by defeating
former Vice President ALBERT GORE Jr in the
Electoral College despite the fact that Gore had
won the popular vote Much of the attention of
the country focused upon contested election
returns in the state of Florida, but the election
also involved other controversies In 2000, a
resident of Illinois, James Baumgartner, opened
a web site called Voteauction.com, which
purported to allow voters to sell their absentee
ballots over the Internet to the highest bidders
Although a court in Illinois quickly closed it
down, the site reopened in several other states
State and federal law enforcement officials
hounded Baumgartner, who finally sold the site
to an Austrian, Hans Bernhard
Baumgartner claimed that he had opened
the site as a publicity stunt to raise awareness of
FRAUD in government Bernhard, on the other
hand, maintained that he operated the site for
the purpose of making a profit Several state and
local agencies brought actions against him
immediately, seeking to have the site shut down
before the November 7, 2000, election More-over, Bernhard faced a contempt charge for violating a court order in Illinois requiring him
to shut the site down Bernhard’s Internet service provider eventually shut down the site before the election
FURTHER READINGS Amy, Douglas J 2000 Behind the Ballot Box: a Citizen’s Guide to Voting Systems Westport, Conn.: Praeger.
Lowenstein, Daniel Hays, and Richard L Hasen 2008.
Election Law: Cases And Materials 4th ed Durham, NC:
Carolina Academic Press.
Norris Pippa, ed 1998 Elections and Voting Behavior: New Challenges, New Perspectives Brookfield, Vt.: Ashgate, Dartmouth.
van Schagen, J.A 2000 Electoral Systems and Repres-entative Government Nijmegen, Belgium: Stichting Ars Aequi.
CROSS REFERENCES Election Campaign Financing; Gerrymander; Voting Rights Act of 1965.
ELECTIVE SHARE Statutory provision that a surviving spouse may choose between taking that which is provided in the will of the deceased spouse or taking a statutorily prescribed share of the estate Such election may be presented if the will leaves the spouse less than he or she would otherwise receive
by statute This election may also be taken if the spouse seeks to set aside a will that contains a provision to the effect that an attempt to contest the will defeats the rights of one to take under the will
ELECTOR
A voter who has fulfilled the qualifications imposed by law; a constituent; a selector of a public officer; a person who has the right to cast a ballot for the approval or rejection of a political proposal or question, such as the issuance of bonds
by a state or municipality to finance public works projects
A member of the electoral college—an associ-ation of voters elected by the populace of each state and the District of Columbia—which convenes every four years to select the president and vice president of the United States
ELECTORAL COLLEGE The Electoral College consists of nominated persons, known as electors, from the states and
Trang 2the District of Columbia, who meet every four years in their home state or district and cast ballots
to choose the president and vice president of the United States
In the popular election, Americans actually vote for electors, not for the candidates themselves The candidate who receives the majority of votes from electors takes office
Although the Constitution allows the electors to vote for any candidate, they usually vote for the candidate of the political party that nominated them In a limited number of instances, the structure of the Electoral College has led to unusual election results
The republican basis of the Electoral College stems from the Constitution When the foun-ders of the United States set out to secure a system of political representation, many among them feared mob rule Elections based on representative blocks of votes would implement
checks within the system The Framers took into consideration that large numbers of regional candidates could appeal to the interests
of various select groups, and thus the populace could be divided widely, and disturbances in the succession of power could ensue They sur-mised that Congress should have the power to settle issues that are not resolved in a popular election, and thus they created the Electoral College As a contributor to this system,
ALEXANDER HAMILTONsaid that it made sure“the office of President will seldom fall to the lot of any man who is not in eminent degree endowed with the requisite qualifications.” Rogue politi-cians, riding any waves of popular sentiments, would need to meet a higher approval before their election The Electoral College thus ensured an orderly transfer of power, especially
in the two-party system that the United States developed
Number of Electoral Votes by State
Fewer than 5 5–9 10–19
Number of electoral votes
Hawaii 4
Alaska
3
Montana 3
Washington
11
Oregon
7
California
55
Nevada
5
Idaho 4
Wyoming 3
Utah
5 Colorado
9
New Mexico 5
Arizona 10
North Dakota 3 Minnesota 10 South Dakota 3
Nebraska 5
Kansas 6
Oklahoma 7
Texas 34
Wisconsin 10 Iowa 7
Missouri 11
Arkansas 6
La.
9
Illinois 21
Michigan 17
Indiana 11
Ohio 20
Pennsylvania 21
New York 31
W.Va.
5 Virginia13 N.Carolina 15
Kentucky 8 Tennessee 11
Miss.
6
Alabama 9 Georgia 15
S.Carolina 8
Florida 27
Maine 4 Vt.
3
N.H.
4
Mass 12 R.I 4 Conn 7 N.J 15 Del 3
Md 10 D.C 3
20–29
30 and over
SOURCE: U.S Census Bureau.
ILLUSTRATION BY GGS
CREATIVE RESOURCES.
REPRODUCED BY
PER-MISSION OF GALE, A
PART OF CENGAGE
LEARNING.
110 ELECTORAL COLLEGE
Trang 3Electors receive their appointments from a
wide and various informal circuit of possible
electoral candidates during election times and
are nominated in many states according to the
guidelines of individual state legislatures The
procedures for nominating electors, whether at
party conventions, primary elections, or party
organizational meetings, differ throughout the
United States The terms of electors are
generally not set by statute, and in some states
parties adopt their own criteria for selecting the
college’s members However, the Constitution
provides that“no Senator or Representative, or
Person holding an Office of Trust or Profit
under the United States, shall be appointed an
Elector” (U.S Const art II, § 1, cl 2)
In most states, only the names of the
presidential and vice presidential candidates—
not the names of the electors—appear on
election ballots The party that gains the most
popular votes in a state receives one electoral
vote for each of its electors In each state, each
party nominates the same number of electors as
there are representatives and senators for that
state in Congress
On the first Monday after the second
Wednesday in December following the popular
election, the electors from each state’s victorious
party cast their ballots The structure of the
Electoral College was established in Article II,
Section 1, of the U.S Constitution Under the
original provision, each elector of the college
cast two votes for president, and the candidate
who received the second-highest number of
votes assumed the vice presidency In 1804 the
TWELFTH AMENDMENTmodified the original plan
to separate the votes cast for the president and
the vice president The electors may choose to
vote for another candidate—as West Virginia’s
electors did in the 1916 race between CHARLES
EVANS HUGHESand Woodrow Wilson However,
this occurs only rarely, and even less often does
it sway the results of an election As the electoral
system is designed, generally, all of the electoral
votes from each state go to the winner of the
state’s popular vote Only Maine and Nebraska
do not use the winner-takes-all system; they use
the district plan (discussed below)
The electors sign, seal, and certify lists of
their ballots These lists go to Washington, D.C.,
where the president of the Senate, in the
presence of the Senate and the House of
Representatives, opens them The votes are
counted If the electors fail to cast a majority vote, the House of Representatives chooses the U.S president and vice president by ballot In
1824JOHN QUINCY ADAMSwas chosen as president
by the House Although the recipient of the majority of the electoral votes is determined by the college, Congress retains the power of verifying the results and makes official the election of president and vice president
Although the workings of the Electoral College have not gone unchallenged, significant challenges are infrequent However, the 2000 presidential election between GEORGE W BUSH
and ALBERT GORE Jr inspired calls to reform or eliminate the national Electoral College The election on November 7, 2000, was one of the closest in U.S history, and several media organizations erroneously announced Gore as the predicted winner before the election booths had closed Bush gained significant ground, and
by the end of the evening on November 7, it appeared he had won the vote through the Electoral College, even though Gore likely had won the national popular vote
The Electoral College consisted of 538 electors in 2000, one for each of the 435 members of the House of Representatives and
100 Senators, and three for the District of Columbia According to the U.S Office of the
FEDERAL REGISTER, for the 2000 election, 26 states and the District of Columbia had laws in effect that bound their electors to vote for the same candidate as the majority of the general populace
in that elector’s state, and 24 did not In most states, the presidential candidate who won the most popular votes then received all electoral votes from that state, referred to as the “winner-takes-all” feature Only two states, Maine and Nebraska, allocated their electoral votes propor-tionally according to the popular vote
On December 18, 2000 (the second Wednesday in December), the electors met in their respective states and went through the formality of casting their votes for the candi-dates from the party that elected them Each state then reported its totals to Congress, utilizing“Certificates of Ascertainment,” which list names of the electors and the number of votes received by each, and “Certificates of Votes,” which list all persons voted for as president and vice president and the number of electors voting for each person
The battle over the 2000 election focused on Florida’s 25 electoral votes Questions arose in
Trang 4several Florida counties about the accuracy of the election results from polls in those counties
Soon after the election, officials from the Florida counties began to call for a recount of the ballots After about a month of litigation and tense national debate, the U.S Supreme Court, in Bush v Gore (531 U.S 98, 121 S Ct
525, 148 L Ed 2d 388[2000]), ordered a halt to the manual recounting Florida is a “winner-takes-all” state, and the election potentially hinged upon the popular vote in a single county
in that state If a recount were to show that Gore had received more popular votes than Bush in Florida, Gore would have received the 25 votes and would have won the election
In the months following the 2000 election, many states reconsidered their methods for appointing electors and also looked at institut-ing changes directed toward more control over electors’ votes One of the areas for potential reform has focused on the differences in the requirements that electors cast their ballots for the same candidate who garnered a majority of the vote in the general populace in that state A second area is the“winner-takes-all” feature in the majority of states Although a few states have introduced bills to modify their systems, calls for reform have died down significantly
At the federal level, no electoral reform has progressed through Congress since 1804, when adoption of the Twelfth Amendment required electors to specify separate candidates for president and vice-president Any reform would likely occur at the state level rather than the federal level
The 2000 election was certainly not the first
to cause controversy The presidential election
of 1876 pitted RepublicanRUTHERFORD B.HAYES, a former governor of Ohio, against Democrat
SAMUEL J TILDEN, a former governor of New York Reacting against the RECONSTRUCTION
measures of Republicans in the South, Tilden received strong support from Southern Demo-crats When the election returns came in on November 7, 1876, Tilden had clearly received the majority of the popular votes However, Republicans determined that if they challenged the outcome of the voting in key areas of Florida, Louisiana, and South Carolina, Hayes could win The Republicans sought victory at all costs and went all-out to claim the electoral votes from those states as their own
The Republicans waged a publicity campaign through the national press, suppressing the tallies
of the popular vote Republican election com-mittees managed to demonstrate that several key counties contained discrepancies in population figures, voter registration, and ballots cast Democrats, for obvious reasons, contested the Republicans’ tactics The parties agreed to let an electoral commission, appointed by Congress, determine the winner of the disputed electoral votes The commission consisted of 15 members from the Supreme Court, the House, and the Senate In the end, a Republican justice,JOSEPH P
BRADLEY, swayed the outcome of the commission’s findings With fewer than 48 hours before Tilden’s scheduled inauguration, the commission announced that Hayes had won the necessary electoral votes On March 3, 1877, Hayes was inaugurated
The results of the election posed issues for proponents and critics alike Defenders of the electoral system claimed that the problems surrounding the 1876 election had less to do with the college than with political corruption They maintained that the election could have resulted in a greater debacle if the constitutional structure of the college had not finally settled the contested issues Critics countered that direct elections would fit the wishes of the people better than did what looked like oligarchic manipulations of the college
In following years, critics added more ammunition to their attack with the election race between BENJAMIN HARRISON and Grover Cleveland in 1888 With an unusual demo-graphic breakdown of ballots, Harrison became president with the majority of electoral votes but with fewer popular votes than Cleveland Throughout the next century, many wondered how such confused elections could take place Proposed alternatives to the current Elec-toral College system generally fall into three categories In the first, the candidate with the most popular votes in a state would automati-cally receive those electoral votes This system would eliminate independent voting among electors In the second proposed alternative, a proportionality scheme, the breakdown of popular votes would correlate directly with the breakdown of electoral votes This plan would abandon the winner-takes-all structure of the college In the third alternative, the district plan used in Maine and Nebraska, individual con-gressional districts would be treated as repre-sentative of a single electoral vote, and the two
112 ELECTORAL COLLEGE
Trang 5electoral votes that each state receives for its two
senators would go to the winner of the majority
of the districts To some advocates, there also
exists a fourth option: abolishing the Electoral
College altogether and letting a direct vote of
the people determine who wins the offices of
president and vice president However, no
changes were made to the electoral college in
either the 2004 or 2008 elections
Despite two controversial elections and
occasional calls for change, the electoral system
has more or less secured an extended series of
peaceable transfers of power in the United
States Absent drastic changes in the political
landscape, its role in selecting the U.S president
and vice president seems secure
FURTHER READINGS
Abbott, David W., and James P Levine 1991 Wrong
Winner New York: Praeger.
Glennon, Michael J 1992 When No Majority Rules: The
Electoral College and Presidential Succession Washington
D.C.: Congressional Quarterly.
Gregg, Gary L., II, ed 2001 Securing Democracy: Why We
Have An Electoral College Wilmington, Del.: ISI Books.
Hardaway, Robert M 1994 The Electoral College and the
Constitution New York: Praeger.
Kuroda, Tadahisa 1994 The Origins of the Twelfth
Amendment Westport, Conn.: Greenwood Press.
Rose, Gary L 1994 Controversial Issues in Presidential
Selection Albany, N.Y.: State Univ of New York Press.
Wayne, Stephen J 1988 The Road to the White House New
York: St Martin ’s Press.
ELECTRICITY
Electricity was discovered byBENJAMIN FRANKLIN
in 1752 The electric generator was invented
by Michael Faraday in 1831 Thomas Edison’s
invention of the electric lightbulb in 1879
sparked the demand for electric power that
continues into the early 2000s, ultimately
resulting in the need for legislative and
regulatory controls on the
electric-power-generating industry
History
By the end of the nineteenth century, the
United States had completed its transition from
using wood as a major energy source to using
coal, and the next transition from coal to oil and
natural gas was just beginning By the early
twentieth century, both homes and businesses
increased their demand for electric power, and
electric utilities obtained long-term franchises
from municipalities
In 1920 the Federal Power Act (FPA), 16 U
S.C.A §§ 791a–828c, was passed in response to increased competition between electric utilities and a lack of consistent service to rural areas
The Federal Power Act gave the Federal Power Commission the authority to license hydroelec-tric plants Later, President FRANKLIN D ROOSE-VELT encouraged Congress to create part II of the act, which gave the Federal Power Commis-sion the power to regulate the transmisCommis-sion of electric energy (16 U.S.C.A §§ 824–824m) This legislation was necessary to guard against potential abuses of the utility companies’
monopolistic structure and to ensure adequate and consistent service nationwide
As more and larger electric generating plants were constructed and as more electric power lines were strung, legislators believed that through economies of scale, electric utility monopolies could actually offer lower costs to consumers than could competition between
SOURCE: Energy Information Administration, Electric
Power Monthly, April 2009.
U.S ELECTRIC UTILITIES REVENUE, 2008
Average Price
Sales Electricity
Industrial
982 billion kWh 1,379 billion Residential
kWh
Commercial 1,352 billion kWh
Industrial 7.01 cents per kWh
Residential 11.36 cents per kWh
Commercial 10.28 cents per kWh
ILLUSTRATION BY GGS CREATIVE RESOURCES REPRODUCED BY PER-MISSION OF GALE, A PART OF CENGAGE LEARNING.
Trang 6smaller utilities Because of the capital-inten-sive nature of providing electric power, and the costs of building plants and stringing lines, it is more cost-effective to spread these costs over the large and consistent customer base
provid-ed by a monopoly
Structure of the Industry Modern electric utilities have three major organizational components: generation (power plants), transmission (high-voltage bulk power between utilities), and distribution (low-voltage power to ultimate consumers) Modern electric utilities not only produce the power they need for their consumers but also pool and coordi-nate excess electricity with other utilities
In 2007 the United States had the ability to produce more than 950,000 million megawatts
of electrical energy, of which only 2.5 percent was from renewable energy sources (although this represented a steady annual increase)
Pooling and coordination of electrical energy take place through high-voltage wires that are maintained and referred to as the national grid;
high-voltage wires are used because they allow transmission at a lower current, which generates less heat and results in less energy loss
At regional distribution centers closer to the ultimate consumers, the electrical energy is transformed into the low-voltage, higher-current electricity delivered to homes and businesses
Major electric utilities produce electric power by burning fossil fuels or natural gas, harnessing the hydroelectric energy produced
by dams, and initiating and maintaining nuclear fission Smaller, independent power producers use hydroelectric energy in addition to wind energy, wood energy, geothermal energy, and biomass, which are all forms of renewable energy Nuclear electric generating plants were constructed in 1957, after the passage of the
1946 Atomic Energy Act (42 U.S.C.A § 2011), which removed the government’s monopoly over NUCLEAR POWER, and the Price-Anderson Act (42 U.S.C.A 2210), which allowed for private ownership of uranium
Commercial nuclear energy expanded in the 1960s and the early 1970s, and most consumers welcomed what was thought to be a safe and inexpensive source of energy From the late 1970s to the 1990s, the dangers of nuclear energy and the expense of environmental contamina-tion and lack of safe waste storage contributed to
the end of nuclear power plant construction No U.S nuclear power plants have been ordered since 1978 Coal and hydroelectric energy continue to be the principal sources of commer-cial electric power
Regulation The generation, transmission, and distribution
of electric power are heavily regulated At the federal level, the transmission of electric power between utilities is governed by thePUBLIC UTILITIES
Regulatory Policies Act (PURPA) (Pub L No 95-617[codified in various sections of U.S.C.A tits 15, 16]) In PURPA, Congress gave the Federal Energy Regulatory Commission (FERC) jurisdiction over energy transmission PURPA requires that independent power producers (IPPs) be allowed to interconnect with the distribution and transmission grids of major electric utilities In addition, PURPA protects IPPs from paying burdensome rates for purchas-ing backup power from major utilities and sets the rate at which the utilities can purchase power from IPPs at the major utilities’s “avoided cost” (market cost minus the production costs
“avoided” by purchasing from another utility)
of producing the power
The primary regulation of the generation, distribution, and transmission of electric power occurs at the state level through various state public utility commissions Because the produc-tion of electric energy is connected with aPUBLIC INTEREST, states have a vested interest in overseeing it and working to guarantee that electricity will be produced in a safe, efficient, and expedient manner In exchange for a monopoly in a particular geographic region,
an electric utility must agree to supply electricity continuously and has a duty to avert unreason-able risks to its consumers Electric utility companies must provide electricity at applicable lawful rates and must file rate schedules with the public service commissions Sometimes these rates are challenged, and administrative hearings are held to allow the utilities to petition for rate increases Electricity rates must be high enough to cover the cost of production and must allow a fair return on the current value of capital investment Rates that would allow significantly more than a fair return may be struck down as unreasonably high
The regulatory landscape began to change
in the late 1990s, as FERC endorsed the concept of greater competition in the sale of
114 ELECTRICITY
Trang 7electricity Advocates of competition
con-tended that the production and delivery of
electricity were two distinct activities that
should not be bundled into one charge for the
energy consumer Instead, they argued for a
free market system where electricity could be
bought and sold at the wholesale level for the
lowest price and then delivered anywhere in
the country National energy producers and
wholesalers sought to end the dominance of
state and regional utility companies, which
controlled the power lines through which
these new competitors wanted to transmit
electricity
FERC issued an order in 1996 that opened
up the electrical transmission lines owned by
state power utilities to other wholesalers of
electricity The order required that utility
companies break out their wholesale electricity
rates to show how much was being charged for
the generation of power, the transmission of
electricity, and other ancillary services In
addition, whatever these companies charged
to transmit their own electricity was the
maximum amount they could charge other
companies that wanted to use their
transmis-sion lines
These regulations were also extended to
the retail transmission of electricity in
inter-state commerce However, FERC rejected the
calls of energy resellers (such as the
Texas-based Enron Corporation) to permit this same
type of open access to retail power sales This
would have meant that consumers and
businesses could obtain their power from an
out-of-state provider, much like they can
choose their long-distance telephone provider
FERC rejected this approach because it feared
that it would be costly and difficult to
administer
The order led some states to deregulate
their utilities to permit competition in this
new legal environment However, New York
and eight other states objected to the order,
believing it usurped state authority They filed
suit in federal court challenging the legality of
the order Enron also filed suit, challenging
FERC’s denial of access to the retail
transmis-sion of electricity The two lawsuits were
consolidated and heard by the CIRCUIT COURT
of Appeals for the District of Columbia The
appellate court rejected the arguments of the
states and Enron, concluding that FERC had
authority under the FPA to issue such an order
The Supreme Court, in New York v Federal Energy Regulatory Commission (535 U.S 1, 122
S Ct 1012, 152 L Ed 2d 47[2002]), upheld the circuit court decision The Court concluded that although the states had regulated electricity for 60 years, this did not mean they had the underlying authority to make such decisions
The federal government had merely allowed these practices to continue FERC had the authority to issue the order and had exercised this power lawfully Though FERC had the authority to allow Enron and other companies
to enter the retail sales market, the Court held that FERC had acted within its administrative powers in declining to exercise its jurisdiction at this time FERC’s decision not to claim jurisdiction over the retail market could be changed in the future
In 2000 and 2001, the state of California was in the midst of an electricity crisis A shortage of electricity led to skyrocketing prices, blackouts and brownouts, and expen-sive long-term contracts by the state to secure a supply of electricity into the future The price
of electricity jumped from $30 per megawatt hour to $361 per megawatt hour Several buyers negotiated power purchase contracts that enabled them to buy in at below-market rates but commit them for a longer period of time However, within months, allegations surfaced that wholesalers such as Enron had manipulated the market to create artificial shortages, which led to the sale of electricity at inflated prices The buyers then sought action from FERC to void or renegotiate these contracts, arguing that they had been executed during a time when the market was “dysfunc-tional” and further seeking refunds of excess amounts paid under the contracts
Years of appeals and remands followed
FERC refused to modify the contracts, but finally, in 2007, the Ninth Circuit Court of Appeals SET ASIDE FERC’s decision as arbitrary and contrary to the FPA It established its own test for a “zone of reasonableness” standard to determine whether a rate imposed undue burden on customers, a public interest consid-eration that would give FERC the authority to intervene However, the Ninth Circuit decision was vacated by the U.S Supreme Court in 2008, and the case was remanded back to FERC In
Trang 8the long-awaited decision of Morgan Stanley Capital Group Inc v Public Utility Group No 1
of Snohomish County (554 U.S _, 128 S Ct
2733 [2008]), the high court reaffirmed that freely negotiated contracts for the sale of electricity under the FPA were presumed to be reasonable and just, in the absence of a showing that the rates impaired the public interest The remand instructed FERC to reexamine whether the buyers’ claims of market manipulation would qualify as grounds for FERC intervention (modification of the contracts) in the public interest
Dangers and Liabilities Electricity, especially at high voltages or high currents, is a dangerous commodity Faulty wiring, power lines that are close to trees and buildings, and inadequate warning signs and fences around transformer stations and over buried electrical cables can subject an individual
to electric shock or even electrocution Because
of the ultra-hazardous nature of providing electric power, states have many statutes and regulations in place to protect the public from electric shock
Other dangers from electricity include stray voltage and electromagnetic field radiation
Stray voltage affects farm animals, especially dairy cattle On dairy farms, it occurs when cattle drink from electric feeding troughs or are attached to electric milking machines, and small electric shocks pass through the cattle, through their hooves, and into the ground Re-peated shocks can inhibit or destroy the milk-producing capability of dairy cattle Liability for stray voltage on farms can be attributed
to public utilities when wiring is faulty or negligently connected to a farmer’s equipment
Some juries have awarded thousands of dollars
to farmers whose cattle have been damaged by this phenomenon
Electromagnetic fields are created whenever current moves through power lines The strength of these fields drops off exponentially
as the distance from the power lines increases
Individuals whose homes or businesses are close
to power wires must live and work in these fields Some individuals who live or work near high-voltage power lines have developed brain cancer and leukemia and blame their condition
on the constant exposure to electromagnetic field radiation Studies have shown a correlation between electromagnetic fields and cancer, but many of the studies have been challenged as
methodologically flawed By the mid-1990s, no conclusiveSCIENTIFIC EVIDENCEproved an epide-miological relationship between cancer and the electromagnetic fields produced by high-voltage power lines
FURTHER READINGS Atterbury, Mark S 1995 “The Strict Liability of Power Companies for Cancer Caused by Electromagnetic Fields ” Southern Illinois University Law Journal 19 Energy Information Administration 2009 “Electric Power Industry 2007: Year in Review ” January 21, 2009 Available online at http://www.eia.doe.gov/cneaf/elec-tricity/epa/epa_sum.html.; website home page: http:// www.eia.doe.gov/ (accessed September 10, 2009) Federal Energy Regulatory Commission Available online at www.ferc.gov (accessed December 16, 2009) Handmaker, Robert S 1989 “Deregulating the Transmission
of Electricity: Wheeling under PURPA sections 203, 204, and 205 ” Washington University Law Journal 67 Hunt, Sally 2002 Making Competition Work in Electricity New York: John Wiley.
Laitos, Jan G., and Joseph P Tomain 1992 Energy and Natural Resources Law St Paul, Minn.: West Sweeny, James L 2002 The California Electricity Crisis Palo Alto, Calif.: Hoover Institution.
Yelkovac, Peter G 1994 “Homogenizing the Law of Stray Voltage: An Electrifying Attempt to Corral the Controversy ” Valparaiso University Law Review 28 CROSS REFERENCES
Energy; Federal Preemption.
ELECTRONIC FRONTIER FOUNDATION
The Electronic Frontier Foundation (EFF) is a nonprofit organization that seeks to increase the understanding of civil liberties and other legal issues in cyberspace, or what it calls the electronic frontier Concerned with preserving the principles embodied in the U.S Constitu-tion andBILL OF RIGHTS, EFF defends the rights of computer users, network users, and members of the online community
Widely recognized for its expertise in legal matters related to computer networks and electronic media, EFF has become a leading resource for those seeking to better understand the complex issues associated with new commu-nications technology As part of its civil liberties mission, EFF seeks to ensure that the creators of electronic communications have the same politi-cal freedoms as the creators of newspapers, books, journals, and other traditional media EFF was founded on July 10, 1990, by Mitchell D Kapor, the founder of Lotus
116 ELECTRONIC FRONTIER FOUNDATION
Trang 9Development Corporation and ON Technology,
and John Perry Barlow, a writer and lyricist
Kapor and Barlow formed the organization after
becoming alarmed by what they saw as
misguided and unconstitutional actions by state
and federal law enforcement officials against
individual computer users Initial funding
for EFF came from Kapor, Steve Wozniak,
co-founder of Apple Computer, and other
computer and technology entrepreneurs
Among EFF’s first efforts were the defense
of several hackers, or computer enthusiasts, in
cases brought by the government EFF has
continued to sponsor lawsuits when it has felt
that individuals’ online civil liberties have been
violated EFF also submits advisory reports,
called AMICUS CURIAE briefs, to courts and
arranges for the charitable donation of
attor-neys’ services for individuals who cannot afford
their own legal counsel
As part of its effort to promote laws that
better accommodate new technology, EFF
monitors legislation and lobbies for changes in
the law It also creates and distributes legal
analyses to companies, utilities, governments,
and other organizations, and it maintains a free
telephone hotline for use by those in the online
community who have questions regarding their
legal rights EFF runs a speakers’ bureau, which
disseminates the organization’s views to law
enforcement organizations, attorneys’
associa-tions, universities, and other groups
EFF promotes improved INTELLECTUAL
PROP-ERTYlaws, including patent and copyright laws,
for electronic media It also encourages the
creation of policies that will promote the
distribution of electronic information by public
and private providers EFF sponsors summits
and working groups that bring together people
from business, government, education, and
nonprofit organizations
Specific proposals advanced by EFF include
a “common carriage” approach to free speech
on electronic networks Under a
common-carrier scheme, network providers must carry
all speech, regardless of its content, but are not
liable for the actions of users EFF has called for
an electronic freedom-of-information act to
allow broader public access to information, and
it has set forth specific proposals that promote
wider access to computer networks such as the
INTERNET
EFF publishes the EFFector Online, an
electronic bulletin; the EFFector, a hard-copy
newsletter; and various pamphlets and books It maintains several communications forums on the Internet, including a web site and news group forums on Usenet and on private online systems
CROSS REFERENCES Computer Crime; E-Mail; Freedom of Speech.
ELECTRONIC SURVEILLANCE Electronic surveillance is observing or listening to persons, places, or activities—usually in a secretive
or unobtrusive manner—with the aid of electronic devices such as cameras, microphones, tape recor-ders, or wire taps The objective of electronic surveillance when used in law enforcement is to gather evidence of a crime or to accumulate intelligence about suspected criminal activity Cor-porations use electronic surveillance to maintain the security of their buildings and grounds or to gather information about competitors
Electronic surveillance permeates almost every aspect of life in the United States In the public sector, the president, Congress, judiciary, military, and law enforcement all use some form of this technology In the private sector, business competitors, convenience stores, shop-ping centers, apartment buildings, parking facilities, hospitals, banks, employers, and spouses have employed various methods of electronic eavesdropping Litigation has even arisen from covert surveillance of restrooms
Three types of electronic surveillance are most prevalent: wire tapping, bugging, and videotaping Wire tapping intercepts telephone calls and telegraph messages by physically penetrating the wire circuitry Someone must actually “tap” into telephone or telegraph wires to accomplish this type of surveillance
Bugging is accomplished without the aid of telephone wires, usually by placing a small microphone or other listening device in one location to transmit conversations to a nearby receiver and recorder Video surveillance is performed by conspicuous or hidden cameras that transmit and record visual images that may be watched simultaneously or reviewed later on tape
Electronic eavesdropping serves several pur-poses: (1) enhancement of security for persons and property; (2) detection and prevention of criminal, wrongful, or impermissible activity; and (3) interception, protection, or appropriation
Trang 10of valuable, useful, scandalous, embarrassing, and discrediting information The law attempts to strike a balance between the need for electronic surveillance and the privacy interests of those affected
Constitutional Law TheFOURTH AMENDMENTto the U.S Constitution protects the“right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” It further provides that “no Warrants shall issue, but uponPROBABLE CAUSE, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things
to be seized.”
Electronic surveillance did not exist in 1789, when this amendment was written, and was probably not contemplated by the Founding Fathers But the colonists were familiar with unbridled methods of law enforcement British officials conducted warrantless searches and seizures and made arrests based on mere sus-picion Even when a search was made pursuant to
a warrant, the warrant was often general in nature, vesting British officials with absolute discretion to determine the scope and duration
of the search
The Fourth Amendment was carefully drafted in response to this colonial experience
It provides two basic protections First, it prohibits government officials, or persons acting under COLOR OF LAW, from performing unreasonable searches and seizures Second, it forbids magistrates from issuing warrants that are not supported by probable cause or that fail
to specify the persons, places, and things subject
to SEARCH AND SEIZURE The Supreme Court has held that searches performed without a warrant are presumptively unreasonable When a search
is presumptively unreasonable, evidence seized
by the police during the search will not be admissible against the DEFENDANT at trial unless the prosecution demonstrates that the evidence seized falls within an exception to the warrant requirement such as the good faith exception
The Supreme Court first considered the Fourth Amendment implications of electronic surveillance in Olmstead v United States, 277 U.S 438, 48 S Ct 564, 72 L Ed 944 (1928) In Olmstead, federal agents intercepted incriminat-ing conversations by tappincriminat-ing the telephone wires outside the defendant’s home without a
warrant or his consent In a 5–4 decision, the Court ruled that electronic eavesdropping involves neither a search nor a seizure, within the meaning of the Fourth Amendment The Court reasoned that no search took place in Olmstead because the government intercepted the conversations without entering the defen-dant’s home or office and thus without examining any “place.” No seizure occurred because the intercepted conversations were not the sort of tangible“things” the Court believed were protected by the Fourth Amendment In a prescient dissent, Justice LOUIS D BRANDEIS
argued that nonconsensual, warrantless eaves-dropping offends Fourth Amendment privacy interests without regard to manner or place of surveillance
The Supreme Court whittled away at the Olmstead holding for the next 40 years, finally overruling it in Katz v United States, 389 U.S
347, 88 S Ct 507, 19 L Ed 2d 576 (1967) In Katz, the police attached a listening device to the outside of a public telephone booth where the defendant was later recorded making inculpatory statements The Court declared this type of warrantless surveillance unconstitu-tional The Court emphasized that the Fourth Amendment protects persons, not places, and held that the amendment’s protections extend
to any place where an individual maintains a reasonable expectation of privacy The Court determined that in Katz, the defendant main-tained a reasonable expectation of privacy in both the particular conversation he had and the public telephone booth where it took place Katz made government electronic surveillance, and legislation authorizing it, subject to the strictures of the Fourth Amendment
As technology continues to develop, the Court has had to consider new methods of investigation by law enforcement officials In Kyllo v United States, 533 U.S 27, 121 S Ct
2035, 150 L Ed 2d 94 (2001), the Court considered the constitutionality of the use of a thermal imaging device during surveillance of a home An agent of the U.S.DEPARTMENT OF THE INTERIOR suspected that the defendant, Danny Kyllo, was growing marijuana in his home The officer knew that indoor marijuana growth requires use of high-intensity lamps, and the officer sought to discover the presence of these lamps through the use of the thermal imaging device The device demonstrated that the
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