A famous experiment, published in 2000, points to something called the Paradox of Choice: more choices lead to lower overall sales. That makes no sense in the narrow rationality often used in economic models, and some evidence suggests it might not actually be true.
By Donald Marron
Does your brain freeze when offered too many options? Do you put off repainting your bathroom because you can’t bear to select among fifty shades of white (or, for the more adventurous, grey)?
If so, take heart. A famous experiment by psychologists Mark Lepper and Sheena Iyengar, published in 2000, suggests that you are not alone. In supermarket tests, they documented what’s known as the Paradox of Choice. Customers offered an array of six new jam varieties were much more likely to buy one than those offered a choice of 24.
That makes no sense in the narrow sense of rationality often used in simple economic models. More choice should always lead to more sales, since the odds are greater that a shopper will find something they want. But it didn’t. On those days, in those supermarkets, with those jams, more choice meant less buying.
This result resonates with many people. I certainly behave that way occasionally. With limited time and cognitive energy, I sometimes avoid or defer choices that I don’t absolutely need to make … like buying a new jam. Making decisions is hard. Just as consumers have financial budget constraints, so too do we have decision-making budget constraints.
Today’s TED Blog provides links and, naturally, videos for a series of studies documenting similar challenges of choice, from retirement planning to health care to spaghetti sauce. All well worth a view.
But how general are these results? Perhaps not as much as we’d think from the TED talks. A few years ago, Tim Harford, the Financial Times’ Undercover Economist, noted that some subsequent studies in the jam tradition failed to find this effect:
It is hard to find much evidence that retailers are ferociously simplifying their offerings in an effort to boost sales. Starbucks boasts about its “87,000 drink combinations”; supermarkets are packed with options. This suggests that “choice demotivates” is not a universal human truth, but an effect that emerges under special circumstances.
Benjamin Scheibehenne, a psychologist at the University of Basel, was thinking along these lines when he decided (with Peter Todd and, later, Rainer Greifeneder) to design a range of experiments to figure out when choice demotivates, and when it does not.
But a curious thing happened almost immediately. They began by trying to replicate some classic experiments – such as the jam study, and a similar one with luxury chocolates. They couldn’t find any sign of the “choice is bad” effect. Neither the original Lepper-Iyengar experiments nor the new study appears to be at fault: the results are just different and we don’t know why.
After designing 10 different experiments in which participants were asked to make a choice, and finding very little evidence that variety caused any problems, Scheibehenne and his colleagues tried to assemble all the studies, published and unpublished, of the effect.
The average of all these studies suggests that offering lots of extra choices seems to make no important difference either way. There seem to be circumstances where choice is counterproductive but, despite looking hard for them, we don’t yet know much about what they are. Overall, says Scheibehenne: “If you did one of these studies tomorrow, the most probable result would be no effect.”
In short, the Paradox of Choice is experiencing the infamous Decline Effect. As Jonah Lehrer noted in the New Yorker in late 2010, sometimes what seems to be scientific truth “wears off” over time. And not just in “soft” sciences like the intersection of psychology and economics, but in biology and medicine as well.
Some of that decline reflects selection pressures in research and publishing … and invitations to give TED talks. It’s easy to get a paper published if it documents a new a paradox or anomaly. Only after that claim has gained some mindshare does the marketplace then open to research showing null results of no paradox.
A famous experiment, published in 2000, points to something called the Paradox of Choice: more choices lead to lower overall sales. That makes no sense in the narrow rationality often used in economic models, and some evidence suggests it might not actually be true.
Court says sending texts using a seized iPhone doesn't violate privacy rights.
by Timothy B. Lee
In November 2009, police officers in the state of Washington seized an iPhone belonging to suspected drug dealer Daniel Lee. While the phone was in police custody, a man named Shawn Hinton sent a text message to the device, reading, "Hey whats up dogg can you call me i need to talk to you." Suspecting that Hinton was looking to buy drugs from Lee, Detective Kevin Sawyer replied to the message, posing as Lee. With a series of text messages, he arranged to meet Hinton in the parking lot of a local grocery store—where Hinton was arrested and charged with attempted possession of heroin.
Hinton wasn't Sawyer's only target. According to a court decision summing up the facts, "Sawyer spent about 5 or 10 minutes looking at some of the text messages on the iPhone; he also looked to see who had been calling. Many of the text messages that Lee's iPhone had received and stored were from individuals who were seeking drugs from Lee."
So Sawyer texted one of the individuals on the list and asked him if he "needed more." The individual, Jonathan Roden, replied, "Yeah, that would be cool. I still gotta sum, but I could use some more. I prefer to just get a ball, so I'm only payin' one eighty for it, instead of two Ts for two hundred, that way." (The court helpfully explained that a "ball" is "a drug weight equivalent to approximately 3.5 grams.")
But can cops legally do this with seized cell phones? When their cases went to trial, Hinton and Roden both argued that Sawyer had violated their privacy rights by intercepting, without a warrant, private communications intended for Lee.
But in a pair of decisions, one of which was recently covered by Forbes, a Washington state appeals court disagreed. If the decisions, penned by Judge Joel Penoyar and supported by one of his colleagues, are upheld on appeal, they could have far-reaching implications for cell phone privacy.
"No longer private or deserving of constitutional protection"
"There is no long history and tradition of strict legislative protection of a text message sent to, displayed, and received from its intended destination, another person's iPhone," Penoyar wrote in his decision. He pointed to a 1990 case in which the police seized a suspected drug dealer's pager as an example. The officers observed which phone numbers appeared on the pager, called those numbers back, and arranged fake drug purchases with the people on the other end of the line.
A federal appeals court held that the pager owner's Fourth Amendment rights against unreasonable search and seizure were not violated because the pager is "nothing more than a contemporary receptacle for telephone numbers," akin to an address book. The court also held that someone who sends his phone number to a pager has no reasonable expectation of privacy because he can't be sure that the pager will be in the hands of its owner.
Judge Penoyar said that the same reasoning applies to text messages sent to an iPhone. While text messages may be legally protected in transit, he argued that they lose privacy protections once they have been delivered to a target device in the hands of the police. He claimed that the same rule applied to letters and e-mail. (Police would still need to seize or search a phone or computer legally, and phones are much easier for cops to seize than computers, which generally require a warrant.)
"On his own iPhone, on his own computer, or in the process of electronic transit, Hinton's communications are shielded by our constitutions," he wrote, referring to both the state and federal constitutions. "But after their arrival, Hinton's text messages on Lee's iPhone were no longer private or deserving of constitutional protection." Penoyar rejected Roden's privacy arguments on similar grounds.
Mobile phones exist in a constitutional grey area. The law has well-developed doctrines protecting the privacy of our desktop computers, landline telephones, and filing cabinets. But modern cell phones perform all of these functions, and more. If the police are free to rummage through any cell phone that falls into their hands, every arrest would automatically give the police access to a treasure trove of private data that they would otherwise need a warrant, based on probable cause, to obtain.
The Washington State decision is not unprecedented. Last year, the California Supreme Court ruled that no warrant was required for the police to peruse a cell phone that was confiscated after its owner tried to sell ecstasy to an undercover police officer. In that case, the police obtained a text message that seemed to confirm the government's case against the suspect. Two justices of the California Supreme Court dissented from the ruling.
One judge dissented from the Washington State rulings as well. "Sawyer engaged in a continuing search when he first searched the contacts list on Daniel Lee's iPhone to find Hinton's phone number," wrote Judge Marywave Van Deren in her dissent. Sawyer "used Lee's iPhone to send and receive messages from Hinton. Under these circumstances, I would hold that Sawyer was required to obtain a search warrant."
In a slightly different context, the Obama administration has also held that the contents of cell phones enjoy constitutional protection. Earlier this year, the Department of Justice filed a brief in a Maryland case arguing that Baltimore police had violated a man's constitutional rights—including his Fourth Amendment right against unreasonable search and seizure—when they seized his phone and deleted videos he had taken of the officers' conduct.
Advocacy group files an amicus brief that could provide a follow-up to Jones.
by Cyrus Farivar
If you’re a student of the privacy and tech law worlds (or you just read Ars) then you’re probably familiar with last year’s Supreme Court decision, Jones v. United States. Earlier this year, the nine justices unanimously agreed that placing a GPS tracking device on a suspect’s car without a warrant was unconstitutional. That decision continues to have ripple effects throughout the privacy law world, and likely will for years to come.
However, as we pointed out in our January 2012 coverage, the justices disagreed amongst themselves about why it violated the Fourth Amendment, which protects citizens against unreasonable searches and seizures. One wing of the court found that installing the GPS device was an unwarranted physical trespass on private property and therefore illegal. The minority wing found the practice unconstitutional as it violated the doctrine known as “a reasonable expectation of privacy.”
In Jones, the Supreme Court found the act of installing the GPS tracking device was a Fourth Amendment search, and doing so without a warrant in that case was unconstitutional. However, the court did not consider the question of whether a warrant—and probable cause—is always required when the government uses a GPS device. In a new case, known as United States v. Robinson, the government argues that an officer’s mere “reasonable suspicion” of wrongdoing is enough to justify the placement of a GPS tracking device on a suspect’s car without a warrant. Earlier this year, a federal magistrate judge in Missouri agreed, allowing evidence collected by the GPS device to stand.
Last week, the American Civil Liberties Union (ACLU) filed an amicus brief in the case, which is still being argued before the United States District Court in the Eastern District of Missouri. The ACLU argues that Jones bolsters its position that “[t]his Court should adhere to the Supreme Court’s long-standing directive that warrantless searches are presumptively unreasonable and hold that defendant’s Fourth Amendment rights were violated.”
It is highly unusual for an outside group to file an amicus brief in a criminal case at such an early stage, but the ACLU appears to believe Robinson is a serious violation of criminal procedure warranting its attention.
In this case, the magistrate judge’s acceptance of the GPS device might indicate the district court judge could also allow this evidence at trial. That may potentially pave the way for a federal appeals court ruling. A future appeals court decision could turn on precisely this point: what, if any, legitimate circumstances exist in which law enforcement may affix a GPS tracking device without first obtaining a warrant?
Defendant argued to suppress GPS evidence
The case involves a man named Fred W. Robinson of St. Louis, charged with improper use of public funds between 2006-2010. Robinson allegedly falsified documents that allowed him to receive a paycheck from the City of St. Louis. During the course of the investigation, starting in 2009, the FBI began an investigation of Robinson and started observing him, his car, and his property to find out he was, in fact, an employee of the city. By January 2010, the FBI put a GPS tracking device on Robinson’s car without a warrant, leaving it running 24 hours a day for nearly two months. Robinson was indicted on federal fraud charges in 2011. As the ACLU points out, the duration of GPS surveillance was twice as long as the case in Jones.
Robinson’s attorneys argued, among other things, that the collection of evidence by the GPS device was an unreasonable search and should be suppressed.
In March, the United States Attorney (the prosecutor in the case) argued in a response (PDF) that “neither a warrant nor probable cause should be required where the agents have reasonable suspicion,” and that a “requirement of a warrant and probable cause would seriously impede the government's ability to investigate leads and tips on drug trafficking, terrorism, and other crimes. Law enforcement officers could not use GPS devices to gather information to establish probable cause, which is often the most productive use of such devices.”
The defendant’s pretrial motion was denied in May by the federal magistrate judge (PDF).
“In this case, the investigating agents had reasonable suspicion to believe that defendant had engaged in and was engaging in criminal activity, namely, submitting false time sheets to be paid for work not performed,” wrote US Magistrate Judge David D. Noce.
“Prior to installing the GPS tracking device, Agent Comeau interviewed four long-time former employees of the Treasurer’s Office, Curtis Royceton, Dan Parsons, Ben Philips, and Harold Miner, each of whom provided information supporting the investigating agents’ suspicion.”
According to the St. Louis Post-Dispatch, earlier this year, Agent Comeau said during a pretrial hearing that “in 17 years with the FBI, she had never had occasion to install a GPS tracking device before, but it was approved by prosecutors and her supervisors, based on case law at the time.”
The judge appears to have agreed with this line of reasoning, and goes on to describe the specific information provided to the FBI, concluding that this was indeed a reasonable suspicion.
“The agents believed that tracking the movements of defendant’s vehicle would enable them to confirm or dispel their suspicion,” the judge wrote. “By tracking defendant’s vehicle, the agents would be able to observe defendant’s daily pattern accurately and cost-effectively. Therefore, the agents did not need to obtain a judicial warrant prior to installing the GPS tracker device on defendant’s vehicle and using the device to monitor the vehicle’s movements. The evidence obtained from the GPS tracker device should not be suppressed for lack of reasonable suspicion.”
The magistrate judge, as a part of federal jurisprudence, must rule on pretrial motions, such as this one, setting the stage for a criminal trial. However, any decisions on acceptance or suppression of evidence by the magistrate, of course, must be approved by the district judge before they take effect during trial.
ACLU rejects government argument
In arguing that the GPS evidence should be suppressed, the ACLU argues primarily that the FBI agents violated Robinson’s Fourth Amendment rights.
The ACLU attorneys write based on judicial precedent, that warrantless searches are presumed to be unreasonable, outside of a few well-defined exceptions, such as “exigent circumstances.” This is the principle that gives, for example, a law enforcement agent the authority to enter a private property if he or she hears someone being violently attacked. Here, the ACLU cites cases, including Jones, holding that warrants are required to provide a judicial check on the abuse of law enforcement power.
ACLU counsel goes on to argue that Magistrate Judge Noce’s understanding of the appeals court decision is flawed, as it does not take into account the Jones decision. Noce cited United States v. Marquez, a pre-Jones federal appeals court decision, which found that installing a GPS tracker was not a search. Later, Jones clearly found that installing a GPS device on a car was indeed a Fourth Amendment search. Worse still, the amicus points out, “The Eighth Circuit’s decision in Marquez was not issued until four months after the agents engaged in the GPS tracking in this case.”
Finally, the ACLU also argues that no exceptions to the warrant requirement apply, arguing that “prolonged GPS tracking over a period of months is by definition the antithesis of an ‘exigent circumstance.’” In other words, because the government knew that it could track Robinson over a long period of time, that meant there was no immediate need to conduct a search.
The Robinson case is ongoing. A decision likely will take several more months, but it could provide more precision concerning when law enforcement can and can’t track suspects without a warrant.
By Derek Thompson
You walk into a Starbucks and see two deals for a cup of coffee. The first deal offers 33% extra coffee. The second takes 33% off the regular price. What's the better deal?
"They're about equal!" you'd say, if you're like the students who participated in a new study published in the Journal of Marketing. And you'd be wrong. The deals appear to be equivalent, but in fact, a 33% discount is the same as a 50 percent increase in quantity. Math time: Let's say the standard coffee is $1 for 3 quarts ($0.33 per quart). The first deal gets you 4 quarts for $1 ($0.25 per quart) and the second gets you 3 quarts for 66 cents ($.22 per quart).
The upshot: Getting something extra "for free" feels better than getting the same for less. The applications of this simple fact are huge. Selling cereal? Don't talk up the discount. Talk how much bigger the box is! Selling a car? Skip the MPG conversion. Talk about all the extra miles.
There are two broad reasons why these kind of tricks work. First: Consumers don't know what the heck anything should cost, so we rely on parts of our brains that aren't strictly quantitative. Second: Although humans spend in numbered dollars, we make decisions based on clues and half-thinking that amount to innumeracy.
Here are 10 more ways consumers are bad at math, with an assist from historian and author William Poundstone.
(2) We're heavily influenced by the first number. You walk into a high-end store, let's say it's Hermès, and you see a $7,000 bag. "Haha, that's so stupid!" you tell your friend. "Seven grand for a bag!" Then you spot an awesome watch for $367. Compared to a Timex, that's wildly over-expensive. But compared to the $7,000 price tag you just put to memory, it's a steal. In this way, stores can massage or "anchor" your expectations for spending.
(3) We're terrified of extremes. We don't like feeling cheap, and we don't like feeling duped. Since we're not sure what things are worth, we shy away from prices that appear too high or too low. Stores can employ our bias for moderation against us. Here's a great story:
People were offered 2 kinds of beer: premium beer for $2.50 and bargain beer for $1.80. Around 80% chose the more expensive beer. Now a third beer was introduced, a super bargain beer for $1.60 in addition to the previous two. Now 80% bought the $1.80 beer and the rest $2.50 beer. Nobody bought the cheapest option.
Third time around, they removed the $1.60 beer and replaced with a super premium $3.40 beer. Most people chose the $2.50 beer, a small number $1.80 beer and around 10% opted for the most expensive $3.40 beer.
In short: We are all Goldilocks.
(4) We're in love with stories. In his book Priceless, William Poundstone explains what happened when Williams-Sonoma added a $429 breadmaker next to their $279 model: Sales of the cheaper model doubled even though practically nobody bought the $429 machine. Lesson: If you can't sell a product, try putting something nearly identical, but twice as expensive, next to it. It'll make the first product look like a gotta-have-it bargain. One explanation for why this tactic works is that people like stories or justifications. Since it's terribly hard to know the true value of things, we need narratives to explain our decisions to ourselves. Price differences give us a story and a motive: The $279 breadmaker was, like, 40 percent cheaper than the other model -- we got a great deal! Good story.
(5) We do what we're told. Behavioral economists love experimenting in schools, where they've found that shining a light on fruit and placing a salad bar in the way of the candy makes kids eat more fruit and salad. But adults are equally susceptible to these simple games. Savvy restaurants, for example, design their menus to draw our eyes to the most profitable items by things as simple as pictures and boxes. Good rule of thumb: If you see a course on the menu that's highlighted, boxed, illustrated, or paired with a really expensive item, it's probably a high-margin product that the restaurant hopes you'll see and consider.
(6) We let our emotions get the best of us. In a brilliant experiment from Poundstone's book, volunteers are offered a certain number of dollars out of $10. Offers seen as "unfair" ($1, let's say) activated the insula cortex, "which is otherwise triggered by pain and foul odors." When we feel like we're being ripped off, we literally feel disgusted -- even when it's a good deal. Poundstone equates this to the minibar experience. It's late, you're hungry, there's a Snickers right there, but you're so turned off by the price, that you starve yourself to avoid the feeling of being ripped off. The flip-side is that bargains literally make us feel good about ourselves. Even the most useless junk in the world is appealing if the price feels like a steal.
(7) We're easily made dumber by alcohol, time, decisions. When you're young and drunk at a bar, you're more likely to do stupid things with strangers. "Am I fully assessing this complex romantic situation?" is a difficult question to answer on seven glasses of wine, so we're more likely to ask ourselves a simpler question: "Is s/he hot?" When we're drunk, stressed, tired, and otherwise inattentive, we're more likely to ask and answer simple questions about buying things. Cheap candy bars and gum are situated near the check-out at grocery stores because that's where exhausted shoppers are most likely to indulge cravings without paying attention to price. Boozy lunches are good for deal-making because alcohol narrows the range of complicating factors we can hold in our heads at once. If you want somebody to take an under-examined risk, get him boozed, tired, or ego-depleted.
(8) We're pained by transaction costs... In a personal finance column here, Megan McArdle implored her readers to give up recurring payments like gym memberships and subscriptions to papers and services they don't use. "Don't buy stuff you don't consume" seems like obvious enough advice, but Megan had a great point. We're drawn to subscriptions and memberships and bundles partially because we seek to avoid transaction costs. We'd rather overpay a little than suffer the psychological pain of pulling out a wallet and watching our money go to each gym season/movie/etc.
(9) ... but we're weird about rebates and warranties. Now that I've just told you that consumers try to avoid additional payments, I should add that there are two additional payments we love: rebates and warranties. The first buys the illusion of wealth ("I'm being paid money to spend money!"). The second buys peace of mind ("Now I can own this thing forever without worrying about it!"). Both are basically tricks. "Instead of buying something and getting a rebate," Poundstone writes, "why not just pay a lower price in the first place?'
"[Warranties] make no rational sense," Harvard economist David Cutler told the Washington Post. "The implied probability that [a product] will break has to be substantially greater than the risk that you can't afford to fix it or replace it. If you're buying a $400 item, for the overwhelming number of consumers that level of spending is not a risk you need to insure under any circumstances."
(10) We're obsessed with the number 9. Up to 65 percent of all retail prices end in the number 9. Why? Everybody knows that $20 and $19.99 are the same thing. But the number 9 tells us something simple: This thing is discounted. This thing is cheap. This thing was priced by somebody who knows you like things discounted and cheap. In other words, 9 has transcended the status of charm price to become a cable of silent understanding between buyer and seller that a product is being priced competitively and fairly. Putting a 9 on a shell-fish platter at a high-end restaurant is ridiculous. Nobody spending $170 on lobster is looking for a discount. But the same person shopping for underwear is (research has shown, again and again) more likely to buy a product that ends in 9. Remember: Shopping is an attention game. Consumers aren't just hunting for products. They're hunting for clues that products are worth buying. In the number 9, the bargain-hunter/discount-gatherer corner of our brain spots a pluckable deal.
(11) We're compelled by a strong sense of fairness. I've already explained how our brains light up differently based on seeing a bargain vs. a rip-off. The shopper's brain is motivated by a sense of fairness. Again, it comes back to the idea that we don't know what things should cost, and so we use cues to tell us what we ought to pay for them. An experiment by the economist Dan Ariely tells the story beautifully. Ariely pretended he was giving a poetry recital. He told one group of students that the tickets cost money and another group that they would be paid to attend. Then he revealed to both groups that the recital was free. The first group was anxious to attend, believing they were getting something of value for free. The second group mostly declined, believing they were being forced to volunteer for the same event without compensation.
What's a poetry recital by a behavioral economist worth? The students had no idea. That's the point. I don't know, either. That's also the point. What's a button-up shirt "worth"? What's a cup of coffee "worth"? What's a life insurance policy "worth"? Who knows! Most of us don't. As a result, the shopping brain uses only what is knowable: visual clues, triggered emotions, comparisons, ratios, and a sense of bargain vs. rip-off. We're not stupid. Just susceptible.
Court smacks down copyright collectives, Big Content.
by Cyrus Farivar
On Thursday, the Supreme Court of Canada ruled in five copyright cases heard by the court last year, setting the scene to re-write much of Canada’s intellectual property law as it pertains to digital media.
In the five cases, the Court established broader definitions for fair dealing (down here below the Great White North, we call our version "fair use"), in particular, for photocopying textbooks. Previously, a public umbrella body called Access Copyright charged additional fees, often passed directly to students, for university-given access to copyrighted textbooks and similar work. The Court trashed much of that setup, finding that photocopying textbooks for or by students for private study or research is fair dealing, and likely will save Canadian universities and students millions of dollars annually.
Additionally, the Court ruled in favor of the Entertainment Software Association, which asked for new tariffs imposed on copyrighted music used in video games be overturned. The Court also overturned federally imposed royalty fees by Canada’s top ISPs and media companies for music downloading, as the individual downloads are not a "public performance." That does not apply to streaming services, however.
The Court also found that samples of songs offered in iTunes and similar services were considered fair dealing and did not require new royalties. The final case confirmed that record labels and artists were not eligible for additional royalties on television and film soundtracks, as they are different than usual sound recordings.
Canada’s copyright law guru, Michael Geist, lauded the decisions, citing in particular, a portion of the decision written by Justice Rosalie Abella, which provides a "broad approach" to future pro-fair dealing arguments.
"Limiting research to creative purposes would also run counter to the ordinary meaning of ‘research,’ which can include many activities that do not demand the establishment of new facts or conclusions," Abella wrote. "It can be piecemeal, informal, exploratory, or confirmatory. It can in fact be undertaken for no purpose except personal interest. It is true that research can be for the purpose of reaching new conclusions, but this should be seen as only one, not the primary component of the definitional framework."
The following may look familiar to you:
It's the FBI's special "anti-piracy" warning. For the past few years, under a special "pilot" program, the FBI has allowed the RIAA, MPAA, BSA, ESA and SIIA (basically, the big record labels, movie studios, video game makers and software companies) to make use of the logo to warn all of their customers that they just might be felons and the FBI might show up at any moment. It's pure FUD. It also makes no difference. Is there seriously anyone anywhere in the world who sees this logo and suddenly changes their behavior?
However, this program is about to expand in a big, big way. The FBI is about to release new rules (pdf and embedded below) that expand the program so that any copyright holder will be allowed to slap this logo on their product. Expect to start seeing it everywhere... and to feel that much more like the content creator you're legitimately buying from thinks you're a crook subject to federal law enforcement action. Way to "connect" with fans, huh?
The document from the FBI discussing this repeats a few times that the FBI really feels like this program is effective and important. Could they be any more out of touch?
First, the FBI believes that the APW Seal and accompanying warnings convey important messages to the public and are a significant component of its efforts to deter and to investigate federal crimes involving the piracy of intellectual property. Allowing use by copyright holders who are not members of industry associations will enhance those efforts. Second, although broader access may make unauthorized use more likely, this concern is overshadowed by the value of increasing public awareness of these prohibitions and the FBI’s role in investigating related criminal activity.There are all sorts of issues with this. The first is that this whole campaign is ignoring a key point: nearly all copyright infringement is a civil infraction, not a criminal one. Most ordinary users don't understand the difference between civil and criminal infringement -- and the FBI and its silly seal do nothing to explain that difference. It's pretty clear that the purpose is to falsely imply that sharing with a friend music you legally purchased might somehow lead you to being targeted in an FBI sting operation. It's FUD, plain and simple. Second, the idea that spreading this logo further will deter actual criminal infringement? Are they serious? Remember, one of the requirements for criminal copyright infringement is that the action is willful. That means that the person knows they're breaking the law. So educating them on the fact that they're breaking the law... er... shouldn't make much of a difference.
Finally, notice that nowhere does the FBI provide any data on how effective this program has been. Because there isn't any. The MPAA shows this logo before movies, and it's not like there has been any less infringement. In fact, the FBI and ICE recently decided to double up and extend the warnings on DVDs , and it's not like that made a difference either. No, instead, all it's done is piss off tons of legitimate customers, who paid good money for the content, only to be interrupted by a giant FBI logo warning them that they may be criminals facing federal charges. The FBI even admits: "it is difficult to measure the effectiveness of the APW Seal program at preventing piracy," but apparently that won't stop it from expanding it. Who in their right mind thinks this is a sensible strategy?
Either way, it's interesting to read through the comments and feedback on this program -- including someone who suggested that the FBI should make sure the warning is skippable at the beginning of movies (the FBI notes that's up to the film producers) or another one that says this seal should be mandatory on copyright-protected works (the FBI rightly points out it has no such authority). Repeatedly, when people raise issues of more widespread use of the seal (dilution, confusion, belief that works without the seal aren't protected, etc.) the FBI insists that the supposed benefits of blanketing the universe with this logo far outweigh any downsides.
There were also concerns raised that the logo will have serious chilling effects on fair use -- which is definitely a major possibility. And the FBI's response is ridiculous.
Five comments also expressed a concern that the broader accessibility of the APW Seal may have a “chilling effect” on fair use, as some copyright holders may attempt to use the APW Seal to discourage uses of their copyrighted work that would otherwise be permissible under the fair use doctrine. The FBI fully recognizes that fair use, which is authorized under Title 17, United States Code, Section 107, does not constitute infringement, much less a federal crime. The warning language does not suggest otherwise. The FBI intends to address this matter on its public website.Because we all know that everyone who sees the logo will go to the FBI's website and read the fine print at the bottom of the page.
Of course, what's really crazy in all of this is that the FBI is famous for having an itchy trigger finger when anyone uses its normal logo. Remember, this is the same FBI that, just two years ago, sent a threat letter to Wikipedia, because the Wikipedia page on the FBI shows the FBI logo (leading to an awesome reply from Wikimedia General Counsel, Mike Godwin).
Honestly, the whole thing is silly, but because of this kind of cluelessness, expect to see those pointless FBI warning logos on all sorts of content in the future, so that every time you legitimately purchase content, you'll be reminded that the copyright holder thinks you're a lousy stinking thief who deserves a federal investigation. I'm still trying to figure out how that could possibly be good for business, but I guess I just don't understand copyright...
Judge rules against review of government decision to place high-velocity missiles on flats near Olympic Park
Residents of a 17-storey tower block near the Olympic Park have no right to challenge an unprecedented decision by the army to deploy high-velocity missiles in a residential area, a high court judge has ruled.
Residents of the Fred Wigg Tower in Leytonstone, east London, argued that the missiles could expose them to a terrorist attack. The block is one of six sites in the capital where missiles, including Rapier air defence weapons and high-velocity systems, will be deployed for the duration of the Games.
The Fred Wigg residents applied for permission to seek judicial review of the government's decision to deploy the missiles, saying it was a "disproportionate interference" with their human rights, and they were not consulted properly over the siting of the ground-based air defence system.
They argued that those who wanted to move out should at least be relocated in hotels by the MoD or a gantry should be erected for the missiles away from the tower block.
Marc Willers, representing the residents, told the judge: "It is the unprecedented siting of a military base or missile site in peacetime on English soil that brings us to this court."
But Justice Haddon-Cave said on Tuesday: "In my judgment, the MoD's voluntary engagement with the community and residents in this matter were immaculate."
He said the MoD had no duty to consult, had not promised to and no "conspicuous unfairness" was caused by not consulting. He agreed with the MoD that a tower block was the only suitable site for missiles and the facts of the case were "not susceptible to a sensible challenge".
The judge said residents had expressed "shock, anxiety and worry" over the prospect of missiles being stationed at the tower. But they had been under "something of a misapprehension" about the nature of the equipment to be deployed and the risks deployment would bring.
Lawyers for the residents on Tuesday were considering an appeal against the ruling.
General Sir Nick Parker, commander of UK land forces, told the court in a written statement that the defence secretary, Philip Hammond, could personally order missiles placed on top of a tower block in east London to shoot down an "unauthorised" aircraft approaching the Olympic Park, following a secret agreement reached with the local council.
"The ability to shoot down an airborne threat using HVM [high-velocity missiles], in this location provides further options to ministers, and means that more time would be available for such a momentous decision. Ministers have been assured that shooting down a plane in such circumstances would be lawful."
Other sites chosen to guard against any Olympic air threat are the Lexington Building in Tower Hamlets, east London; Blackheath Common and Oxleas Wood, both in south-east London; William Girling Reservoir in the Lea Valley reservoir chain, Enfield; and Barn Hill at Netherhouse Farm in Epping Forest.
The navy's helicopter carrier, HMS Ocean, will be moored in the River Thames, RAF Typhoon fighter bombers have been deployed to RAF Northolt in west London, and Puma helicopters will be based at a Territorial Army centre in Ilford.
Outside the law courts, the residents' solicitor, Martin Howe, said: "We are very disappointed with the decision." He would have to sit down with the residents "and explain that by this Friday missiles will be on their roof".
Howe added: "The judge looked at the possibility of a gantry being built for the missiles to be placed on, instead of on the roof of people's homes.
"He dismissed the idea. The fact is a scaffolding company phoned my firm today and said that within a couple of days they could construct such a tower. I am sure it is not beyond the wit of the MoD to be able to do so as well."
Howe's partner,David Enright, said the clear implication of the judgment was that "the MoD now has power to militarise the private homes of any person" even when there was no war on, or state of emergency declared.
Enright said: "They do not need to ask you, do not need to consult you, but can take over your home and put a missile on the roof, a tank on the lawn and soldiers in the front living room, exercising powers under the royal prerogative.
"Parliament has not been consulted on this dramatic change in the English way of life.
"We have always believed an Englishman's home is his castle – not a forward operating base.
"It is vital that parliament look at this. We have passed the Rubicon in the way we live our lives."
Enright said in times of war and national emergency "any one of us would open our doors and assist the armed forces".
But the 2012 Olympics were taking place "in peace time – a happy time".
A Ministry of Defence spokesman said: "We are pleased the high court has found in our favour … we acknowledge that the deployment, albeit temporarily for the Games, of military equipment and personnel can be unsettling particularly where the community may not be used to a military presence. We will continue to engage with local communities to provide reassurance and reduce any impact on residents as far as possible."
EFF—together with Public Knowledge, two national library associations, and U.S. PIRG—submitted a brief yesterday urging the United States Supreme Court to begin the process of rescuing first sale rights, which have been under assault for decades.
The brief was filed in the case of Wiley v. Kirtsaeng, which turns on the re-sale of textbooks in the U.S. This fall, hundreds of thousands of students will head off to college, ready to fill their heads with knowledge. What they may not realize yet is that they will also be filling the coffers of U.S. textbook publishers, which sell required college texts at exorbitant prices knowing students have little choice but to cough up the cash.
Standing in the way of this tidy scheme is the used textbook market, and that market—not to mention used bookstores, libraries and video rentals—depends on our time-honored first sale doctrine. Under this doctrine, the buyer of a book or any other copyrighted work has the right to dispose of that particular copy as she sees fit.
Unless, according to two appellate courts, those books happened to be manufactured outside of the United States. Due to an obscure provision in U.S. law, those courts have held that the first sale doctrine applies only to works made in the USA. In other words, if copyright owners are crafty enough to outsource the actual manufacture of their works abroad, they can control future redistributions of copies of works that were manufactured abroad, for the entire copyright term.
Our amicus brief urges the United States Supreme Court to reject that interpretation. As we explain, courts are supposed to interpret laws so as to avoid absurd results. Limiting first sale to works made in the United States encourages at least two perverse outcomes: American consumers lose access to affordable used copies of products, and companies move America manufacturing and related jobs overseas. Congress could not have intended these results. What is worse, given that copyrighted works are embedded in all kinds of goods, from refrigerators to watches, the ramifications would reach well beyond the traditional book market.
But this case is important for another reason: it is a chance for the Supreme Court to send a message about the future of first sale rights. Over the past decade, courts and copyright owners have quietly been creating a world in which goods that contain copyrighted works are never truly owned, but only licensed. And those licenses inevitably contain a plethora of legal restrictions on consumers' ability to fully use those goods. Never mind that the consumer paid for a permanent copy and the seller doesn't really expect that the buyer ever give it back—the fine print claims to transform a sale into something else.
The public should be watching this case closely. It is an opportunity for the Supreme Court to stand up for common sense and recognize that copyright is supposed to serve the public interest, not the other way around. Let’s hope it does so.
by G.W. Schulz
In their unending battle to deter illegal immigration, drug trafficking and terrorism, U.S. authorities already have beefed up border security with drug-sniffing dogs, aircraft, and thousands more agents manning interior checkpoints.
Now, the US Drug Enforcement Administration has decided it wants more, and the Justice Department agency doesn’t care whether someone has even set foot in Mexico.
Clusters of what at first appear to be surveillance cameras have begun turning up in recent months on the Southwest border, and while some of the machines are merely surveillance cameras, others are specialized recognition devices that automatically capture license-plate numbers and the geographic location of everyone who passes by, plus the date and time.
The DEA confirms that the devices have been deployed in Arizona, California, Texas, and New Mexico. It has plans to introduce them farther inside the United States.
Special Agent Ramona Sanchez, a spokeswoman for the DEA’s Phoenix division, said the information collected by the devices is stored for up to two years and can be shared with other federal agencies and local police. She declined to say how many have been installed or where, citing safety concerns.
"It’s simply another surveillance method used to monitor and target vehicles that are commonly used to transport drugs, bulk cash, and weapons north and south," Sanchez said.
Journalists at the Center for Investigative Reporting saw them situated near a well-traveled checkpoint far inland from Mexico on Interstate 19, which stretches 63 miles from Tucson, Ariz., to the city of Nogales on the border.
Arizona’s Tohono O’odham Nation, which shares a 70-mile stretch of border line with Mexico and is known for its high volume of smuggling activity, has at least four sites with the devices on or near its land.
A local blogger critical of the U.S. Border Patrol’s numerous checkpoints snapped close-up photos of the devices on an east-west state road in southern Arizona’s Pima County.
Undoubtedly, smugglers are traveling along roadways near the border, but everyday residents there also must decide what they’re willing to give up in exchange for improved public safety.
In the past, Arizonans have drawn a line in the sand by expressing their discontent with a similar technology—speed cameras—used for traffic enforcement. Angry drivers reportedly disarmed them with axes and covered the cameras with sticky notes and boxes. Others simply left tickets unpaid, and in one extreme 2009 case, a technician responsible for maintaining the cameras was shot to death. The state’s Department of Public Safety pulled the plug on them in 2010.
A 96-year-old former Arizona governor was ensnared last month when he was stopped and questioned in the desert heat for 30 minutes after a recent medical procedure tripped up the small nuclear-detection devices worn by Border Patrol agents.
Officials elsewhere have said no thanks when asked to install license-plate scanners. Utah lawmakers balked at the idea when federal authorities broached it in May. The plan was for two local sheriffs to receive them as a donation, and the machines would then be installed to record travelers driving on a pair of interstates that connect in southwest Utah.
Public outcry over the threat to privacy and civil liberties led Beaver County Sheriff Cameron Noel to "just give up" on the proposal. The sticking point for critics, he said, was that personal information belonging to law-abiding citizens would flow to Washington and be kept at a storage facility in Virginia for months on end. Noel said all he wanted to do was catch criminals. The DEA has since backed off, too, he said.
"(Critics) think that it’s Big Brother. I was referred to as George Orwell, ‘1984,’ and the whole nine yards," Noel said. "They could not understand what the technology was all about and how it actually worked."
Police can be alerted automatically in real time when a wanted individual passes by one of the devices. Agencies around the country have been affixing the machines to the outside of patrol cars and receive an in-car notification if they come upon a license plate connected to a wanted felon or stolen vehicle. Vast amounts of historical data also may be searched and used to map where someone has been, making the intelligence value of license-plate readers attractive to law enforcement.
Those abilities unnerve civil liberties and privacy groups. Jay Stanley, a senior policy analyst at the American Civil Liberties Union, said many of the 21st-century technologies police are pursuing amount to "policymaking by procurement" in which agencies buy first and deal with questions about the privacy implications later. Police generally defend license-plate scanners by arguing that motorists don’t have a reasonable expectation of privacy on public roads when it comes to their license plates.
"These machines right now are capturing a few snapshots of people at random times and places," Stanley said. "Sometimes, that can be sensitive, but I think over time, we have to expect that they’ll become more and more dense, to the point where they might be the equivalent of being tracked by GPS."
Utah state Sen. Todd Weiler said he's also troubled by the technology. The Republican said drug enforcement officials skipped the state’s Department of Public Safety, which oversees the Utah Highway Patrol, and went straight to the two local sheriffs.
"In my opinion, I think two years is too long to store that data, and I’d like some transparency and accountability to have some verification that the data is actually being deleted," Weiler said.
Shortly before publication, the DEA sent a brief email declaring that due to a "recent policy change, we have determined that operationally these records only need to remain accessible for 180 days." Officials there refused to provide additional clarification.
Elsewhere, privacy advocates lost a battle over license-plate scanners in June when the law enforcement lobby defeated a California bill that would have restricted how long data can be stored. The legislation—proposed by state Sen. Joe Simitian, a Silicon Valley Democrat—also called for a warrant when police wanted to retrieve driver data held by private companies that collect it on behalf of both police and banks hunting for delinquent borrowers.
Staff working on opening and closing ceremonies allowed to eat chips served outside branches of fast food chain
The great London 2012 Olympic chip embargo has cracked. No longer will hungry workers at the games be denied pie and chips, chicken and chips or even just chips because of a monopoly enforced by McDonald's, a major sponsor.
On Wednesday, the London Organising Committee responded to plaintive cries of caterers who had grown tired of receiving "grief" from chip-hungry staff working on the opening and closing ceremonies and allowed chips to be served outside branches of the fast food chain McDonald's.
It all results from one of the stranger twists of Olympic planning. McDonald's sponsorship deal included the exclusive right to sell chips in and around Olympic venues. Other caterers had negotiated special rights to serve chips with fish – but not chips on their own, or with anything else.
Cue frustrated scenes at the lunch counter in the ceremonies catering area where staff were toiling over the staging for Danny Boyle's 27 July opening extravaganza. "Please understand this is not the decision of the staff who are serving up your meals who, given the choice, would gladly give it to you, however they are not allowed to," read a notice pinned up by staff. "Please do not give the staff grief, this will only lead to us removing fish and chips completely."
"It's sorted," said a spokesman for Locog. "We have spoken to McDonald's about it."
But the embargo will hold in other areas. That means no chips with anything other than fish anywhere else in the park unless spectators dine at McDonald's.
On Wednesday catering staff in the media centre were taking no risks. There were hash browns and dauphinoise, but no chips. A server explained why: "Because McDonald's own the rights, so we're not allowed to".
Some probably see Sweden as a country where proper due process of law prevails, or at least exists. Others would very much like to see Sweden as such a country. One thing that this country has shown is, that when the interests of its establishment are threatened, all the branches of government fuse into one and cut any corners needed to neutralize the threat to its establishment, rules and rights be damned.
On April 17, 2009, a verdict was handed down that led the world to blank stares of disbelief, then furious anger. The two operators of The Pirate Bay, its media spokesperson, and a fourth unrelated person were sentenced to one year in jail each and damages that, by now, well exceed 10 million euros. This was essentially a declaration of war against an entire generation. The case was appealed and lost, and the Supreme Court denied to hear the case, to everybody’s surprise except the establishment’s.
A few days ago, Peter “Brokep” Sunde – the former media spokesperson of The Pirate Bay – sent a formal plea for pardon to the Swedish Administration. This is a procedure where you can get a judicial sentencing undone by the political administration in exceptional circumstances, as part of checks and balances between the branches of government. It is practically never granted, but Peter saw it as a way to get his version into permanent governmental records – and to get a written and signed statement that no error had been committed in these circumstances. As Peter wrote in Swedish: this was not written with the intention to take it into HTML format, but any claims and facts in the text can easily be verified in Swedish-language media by any reporter wanting to do so. I have taken the liberty to insert a few references – some for reference, some for the Swedish context.
This is a long text, but worth reading. It was only as I translated it from Swedish, forcing me to really contemplate its meaning in detail, as the full egregiousness of it all hit me.
I’d like to tell a story from my life, a story that has come to have great importance – not just to me, but to the global and emerging Internet. I happened to get a role in the eye of the storm. For your consideration of the submitted plea, I feel that this letter is needed: an insight into what has gone wrong, and why you need to fix this. You see, indirectly, I do not ask pardon for myself. I ask pardon for a judicial system that has been steamrolled over by lobbyism and ignorance. But ultimately, I ask pardon for our future culture and communications. My case has significant impact on these.
This is a long story, so let’s get started right away.
A little over six years ago, something odd happened in Swedish history. The Police conducted a raid at twelve locations in Sweden. 65 police stormed in at these locations and searched for something and anything that could be used as evidence against a search engine on the Internet.
Nothing like this had ever happened before in Sweden, and will quite likely never happen again. The days that followed produced tens of thousands of articles around the whole world. Thousands of people, mostly young adults, took to the streets all over the nation and protested. They protested that their cultural life had been violated.
I attended one of these protests, having a political interest and being the media spokesperson for the search engine in question. A search engine helping people all over the world to get in touch with each other to exchange information. A search engine so appreciated, that almost every day, a mail arrived from somebody telling the story of how it changed their life. Pictures of tattoos with its logo proudly inked onto someone’s body. Acclaims to the Swedish web service that changed people’s lives. The protests boiled down to just this: people felt steamrolled over, all across the world. I remember standing in the Mynttorget square on an early morning in the beginning of June, 2006, watching representatives from all parties in Parliament screaming out their fury over what had recently been uncovered: the United States had threatened little Sweden with trade sanctions if the web service wasn’t shut down.
The Swedish Public Television’s newscast Rapport had told the embarrassing story. Mighty Hollywood demanded that the White House would force Sweden to do something about the cultural exchange going on outside of Hollywood’s control. The Swedish Minister of Justice at the time, Thomas Bodström, was called into a meeting in the White House and was informed of the consequences of non-compliance: trade sanctions from the United States against Sweden within the context of the WTO. Sweden could become a second Cuba.
A few months prior, a Swedish prosecutor had arrived at the conclusion that this service could not be sentenced for any crime in Sweden. He sent a memo explaining this to his superiors. After a meeting between representatives from the Justice Department and Sven-Erik Alhem, the over-prosecutor at the time, the prosecutor in question reconsiders. A quick raid was required, with full force. So full a force, in fact, that when the raid is actually conducted, the police have no idea what to grab. They seize hundreds of computers, in several cities, but also loudspeakers, cables, and the like. They don’t know the size of the things they’re supposed to be looking for, and decide – during the raid in session – to rent trucks from local gas stations to ship off all the seized goods. In short, it is stressful, unplanned, and ill considered. So ill considered that the police even missed several locations where the target of the raid had ongoing activities.
Thomas Bodström promised to come clear with what had happened. And yet, over 700 mails between him and the United States regarding this matter were (and remain) classified as secrets of the State. We still haven’t seen them. In the aftermath of the political scandal that was uncovered, Swedish national records were set in charges filed with the Constitutional Committee (Konstitutionsutskottet), Parliamentary Ombudsman (JO) and Chancellor of Justice (Justitiekanslern). The newly-founded Swedish Pirate Party became one of Sweden’s largest in a matter of days. A few weeks later, an election was held. None of the young wanted to vote for the ruling Social Democrats any longer, knowing that the Social Democrats had sold out their interests to rich lobby organizations in the United States. The Social Democrats lost power, partly because of this scandal.
Only two days after the raid, The Pirate Bay was back online. It’s an easy service to copy, and with no advanced functionality. That was one of the major features with the underlying technology, being smart and easily maintained to that level. It was so easy to maintain, nobody had practically touched it for a year at the time of the raid.
The attention around The Pirate Bay only grew after this. It might have been a large service before, but it was suddenly one of the world’s 100 largest services. Global media called non-stop.
My involvement in The Pirate Bay had been one, and one only: media spokesperson. Suddenly, images of my face were being printed onto front pages of all the world’s newspapers. I was invited daily to television and radio to discuss the political issues surrounding file sharing. Debates raged for days on end, and I hardly found any time to do my day job, thinking this was such an important issue. I grew more and more active in the political aspect of the topic after the raid, and indirectly, I became a representative of those who say that file sharing is something positive for society as a whole.
The raid was harsh and forceful. As mentioned earlier, it took place at twelve locations in Sweden. Myself, I lived in Oslo, Norway during this time, seeing myself as very peripheral in this context. My acquaintances from The Pirate Bay had been informed of charges pressed against them, but nothing more happened for a very long time. After about two and a half years, I got a letter. At this time, I had moved to Sweden, and I was being called as a witness, being called to give my deposition to the Police in a few weeks’ time.
About 30 people were called as witnesses. Some were known to me, some I’d never heard of. Time passed and I was supposed to go to the police station to give a deposition. Just the day before, the lead interrogator Jim Keyzer (who was also responsible for the entire investigation) calls me and tells me I’ll be charged with a crime on arrival. He tells me that this being the case, I have the right to have an attorney present. He doesn’t stop there, but also gives me the tip of picking “just about the first lawyer you can find, as we’re in a hurry to get this over with”. He adds that I should “skip picking a hotshot lawyer from Stockholm” so his work wouldn’t be further delayed. All of a sudden, the investigation is in a world of rush to get concluded.
Now, I’m a reasonably intelligent person. Obviously, I see that something is odd when a policeman asks me to pick a bad lawyer. Therefore, I immediately called the first good lawyer I knew, Peter Althin. Althin took the case immediately, and called the policeman in question. The policeman got upset and enraged as he had already planned his trip to the city of Malmö, where I would be heard, and found it enraging that he had to schedule a second trip to the city.
A few weeks later, Jim Keyzer came to Malmö to question me. My lawyer was with me, and both he and I felt that something was very odd. My lawyer told me that in his long career with many high-profile cases, he had never seen such a rude and stressed-out interrogator. He found it very odd indeed. Myself, I thought it felt like a scene from a bad movie, when Keyzer screamed at me that I was being childish in responding “no comment” (as I didn’t want to say anything that might affect my friends). In a few locations in the transcription of the recorded hearing, the transcription just reads “unhearable”. That’s when Keyzer is outraged and yelling so loudly that the microphone is unable to record the sound.
It may appear odd that I’m placing such emphasis on Keyzer here, but there’s a point to it. It’s the handling of this case. Sweden has a reputation of being a country with high morals, sans corruption and with common sense guiding its justice. In my case, this has been shoved aside. Jim Keyzer is one of many examples of this.
One week after the filing of the concluded investigation, one of my acquaintances noticed that Jim Keyzer had changed his “network” on Facebook. He was no longer part of “Police Authority in Stockholm”, but was now part of the “Warner Brothers” network. Warner Brothers is one of the corporations behind the charges against The Pirate Bay. I got very upset and called Jim Keyzer to ask him what was going on, and was informed that he had changed jobs and was working for Warner now; Warner and NBC Universal, another corporation behind the charges (not to mention the political pressure). Warner and Universal are also part in the Anti-Pirate Bureau (Antipiratbyrån), an organization which was one of the formal plaintiffs during the trial. Keyzer’s new role was anti-pirate manager for these organizations. He had started his new job the day before the investigation was formally concluded.
Jim Keyzer’s first assignment for his new employer was to locate a co-defendant, Gottfrid Svartholm. Gottfrid is a nomadic young man who frequently lives with friends. Since Keyzer had been able to use police resources to get information on Gottfrid’s whereabouts, he went to that location to serve the civil lawsuit part of the criminal case that he, himself, had investigated for upwards of three years. Keyzer did run into Gottfrid by chance, and did not disclose his change of employers.
Using my rather far-reaching network, I looked closer into at what time, exactly, that Keyzer signed on with his new employer. It turned out that his new employer had posted the job opening publicly, and in a few meetings about the ongoing investigation, Keyzer had been informed that he may be a good fit for the new position. After some more digging, I located a person who had applied for the same job. He could tell me the exact date when he was informed that the position had been filled by another applicant: eight days before I was upgraded from “witness” to “defendant” in the case. And seven days before Keyzer started calling and telling me what a rush it was to hear all witnesses. Accordingly, the only time I met with a policeman during the entire time of the investigation was with the very policeman who had already got a well-paying job with my adversary in the case. A policeman going from almost no speed at all, to having to close the investigation in one day. In a hearing that my lawyer perceived as one of the oddest in his long career.
At the time of that hearing, I was also the most hated person in the power corridors of Hollywood. I was the one individual most important to silence, being the media spokesperson for their nemesis. Young people all over the world listened to me as I told them of the fantastic opportunity we have for a free and open, participatory culture, as long as we don’t have to be locked up by these corporations. I spoke with all kinds of people – from teachers and students, to presidents of some of the world’s largest countries – about the opportunities and the threats on the table. The threats were mostly the adversaries in my case.
As the case came up in a Swedish District Court, it was assigned to a normal department by random, as is proper. However, the manager of Department 5 (the department of IPR) didn’t think this was a criminal case, but an IPR case. Therefore, the case was moved to Department 5, at the request of the department who wanted the case. It would later turn out that, as lots were being drawn to allocate a judge to the case at random, there was only one to choose from: Tomas Norström, the head of Department 5, who had requested the case would go to his department. In short, a Swedish judge decided that he, himself, should be trying a specific case, by abusing the processes of the District Court.
Tomas Norström is very interested in copyright cases. So interested, in fact, that he also happened to be a member in the Swedish Association for Copyright, and was a board member of the Swedish Association For Industrial Legal Protection, SFIR. Two organizations that take a very clear stance on copyright issues. The associations are daughter associations of ALAI and AIPPI, two international organizations whose statutes state their goal to strengthen the interests of copyright holders. The chairpeople for these international organizations frequently make statements condemning all kinds of copyright violations, and work for harsher punishment for violations.
Tomas Norström didn’t consider himself to be biased. Besides, he neglected to disclose his engagements since he regarded them as without consequence to the case. There was plenty of opportunity for him to consider his bias before the trial, as I personally had checked the layman judges and found that two of them were biased. When my lawyer officially communicated this, Norström published a press release where he said he had found one biased layman judge (without mentioning the complaint from us). He had found a composer who had been active in the record labels that were suing us. There was another layman judge who got the paycheck from these industries, who Norström did not consider biased.
The proceedings in the District Court were very strange. There was commotion just everywhere: TV crews from BBC, al-Jazeera, Swedish Public TV, Norwegian Public TV, and more. For several days, it was like the whole world was watching when Sweden were prosecuting a few people for aiding and abetting a crime with no principal perpetrator. Everywhere, people shook their heads. In the large newspapers, there were polls whether people thought there should be a conviction – 99.8% out of over 50,000 said “no” (and there was a margin of error of 0.2%, according to the statisticians of the paper, so possibly 100%).
During the court proceedings, I noticed sleeping laymen judges. We were held to sit watching screen captures, screendumps that immediately showed to my technical mindset that files had not been downloaded via The Pirate Bay at all. As we pointed out that the screendumps used as evidence proved conclusively that The Pirate Bay had not been available when they tried to download something, the prosecutor changed the formal charge to another title, resembling “aiding and abetting an assist of a theoretically possible crime”. None of the thusly-guessed principal crimes could even be traced to being under Swedish jurisdiction – or Norwegian, for that matter, where I had been living during the events I was on trial for. Still, we were convicted.
We were convicted to a collective sentence. Everybody was sentenced to one year in prison and 30 million SEK in damages, record-setting damages in Sweden. It surfaced that the court had been biased, but despite that, it was declared that Norström had made no formal error of proceedings. Instead, we had to appeal to the Appeals Court.
Looking at the verdict from the District Court, I couldn’t really understand why I had been convicted. There were no specific charges against me. There were no periods of time where I had been involved. There was not even a crime proven to have been committed – and yet, I was convicted of aiding and abetting a crime that had not been proven to have taken place. Because of substandard evidence, the burden had been turned around – I knew things that could have been useful for The Pirate Bay, and therefore, the reasoning went, these things had happened and I had performed them. Despite the fact that all people who had been heard stated that everything programmed or developed on The Pirate Bay had happened before the events for which I were on trial, and that the skills I possessed that might had been useful, was still dwarfed by the two founders of The Pirate Bay. Skills that, in the end, weren’t even needed as everything had been untouched.
In the Appeals Court, the story was similar. It wasn’t one judge with a background in the Swedish Association for Copyright, but two. There were laymen judges that worked for Spotify – a competitor of The Pirate Bay – which was also owned in large part by the record labels which were our adversary. After a painfully long playback of the recorded testimonies from the District Court (where even the laymen judges in the Appeals Court fell asleep a couple of times), we were still convicted. I was personally convicted to eight months in prison and 46 million SEK in damages. This sum, having collected interest, is closer to 100 million SEK today (11 million euros).
As I read the Appeal Court’s verdict of why I should be personally responsible, I cannot find anything but apathy and helplessness. According to the Appeals Court, I have done three things that give me criminal liablility. I’d like to go through these with you.
Among other things, I’m supposed to have installed a computer that operated as a so-called load balancer – a computer that makes it possible to distribute the workload of big web services among different computers. It reads clear as day in the Appeals Court verdict that I’m responsible for configuring this computer. Such a computer did indeed exist in one of the racks that The Pirate Bay was located in. On the other hand, it wasn’t connected with a single wire or cable in any way. Some computers have been investigated at the National Forensic Laboratory (Statens Kriminaltekniska Laboratorium). Some computers have been combed for details. In some cases, the prosecutor has called owners of computers to ask them if they want to press charges of electronic trespassing against Gottfrid Svartholm, as they found that he has had access to computers. Computers he has been maintaining for clients. The computer I’m supposed to have been responsible for isn’t mentioned with a single line of text, except in the seizing protocol from the raid. I cannot find the configuration I’ve been convicted of creating. The configuration I have created, beyond reasonable doubt, according to the Swedish Appeals Court. The configuration I can say with 100% certainty would have proven that this computer had never been used for The Pirate Bay. The owner had placed it in the rack by themselves just a few weeks prior to the raid.
During the Appeals Court proceedings, prosecutor Håkan Roswall confirmed my story of this, that this machine had never been used in the operations of The Pirate Bay. Therefore, my lawyer put no energy into bringing it up in his final statement. And yet, Roswall said after this, that I had been responsible for it. And in the end, I was convicted because of it. There is not a shred of evidence anywhere that this computer has been in use, not for anything at all. I usually say that I feel like a Finn convicted of a gun murder, because there was a knife nearby, and “us Finns are known for using knives”. Since I “confessed” to knowing what a load balancer is, I was convicted for such a computer having been at the site, despite not being operational. And despite my co-defendants are being among the foremost in the world of building such solutions, working with it daily. And despite the fact it would have been dead easy for Jim Keyzer to bring out the configuration, especially when I am about to be accused for it.
Point two I was convicted for is that I’m supposed to have built a system for genres on The Pirate Bay. I’m supposed to have been responsible for improving functionality of the service by somehow injecting genres. Whatever this would mean. In the verdict, it says I was responsible for “categorization”. When something is uploaded to The Pirate Bay, the uploader chooses themselves what category they want to put the material in. After that, it’s there. The category system has existed since before the events on trial – I’d even dare say it’s been the same system since The Pirate Bay started. Besides, genres is something completely different than categories, it’s sub-categories. One category might be Movies, Music, or Games. A genre might be Action, Sport, or Hiphop. There’s a significant difference in meaning. But in short, there hasn’t been a change of categories on The Pirate Bay since 2004. There hasn’t even been a change to the categories on The Pirate Bay today. And genres have never even existed, and yet, I have been convicted for creating them. The reason for my conviction that I mentioned “genres on the bay” in passing in a mail, a third person asked who’s responsible for search, and was replied “I think Peter”. At the same time, I was involved in building a new service, The Video Bay, a service for streaming video which would have gone online if it hadn’t been for the big raid. Despite this, the Swedish Court thinks that I’m guilty to categorization on The Pirate Bay, proven so beyond reasonable doubt. Technical evidence doesn’t exist here, either. This would have been dead easy to produce, too, and this was also a task in Jim Keyzer’s area of responsibility.
Point three is an action I admitted to performing. But I don’t consider it being a crime. I’m convicted of having sent an invoice for advertising on The Pirate Bay once in April 2006 (almost a year after the events on trial started). The back story was as simple as a quarrel between those who paid for advertising and the company managing the advertising on The Pirate Bay, and therefore, the former demanded to be invoiced from a Swedish company. As I was well-liked by all parties, the CEO of this Swedish (publicly traded) company asked me to send the invoice from my Swedish company. I did, and then I paid an invoice from the company that they themselves refused to pay directly. There were personal quarrels behind it all, and it was a way to come to an end of this quarrel. I didn’t make a cent from it and the money wasn’t even in my account for a full day.
This is something that an ordinary collections agency could have done, without getting prosecuted or convicted for it. Jim Keyzer has heard the people selling the advertising, who collected half of the money made on The Pirate Bay, and didn’t once think of accusing them of making money off of financing this service. The prosecutor was of the exact same mindset. But push coming to shove, I am completely sure there is nothing illegal in what I did.
In the eagerness to make sure The Pirate Bay was convicted, I was pulled along, evidence or no evidence. Reading the verdict, it is obvious that the starting point has been that I must be convicted, and then trying to find something to convict me of. The fact that the policeman who worked for my adversary in my case (as well as my political adversary) has been able to investigate all computers in detail, and chosen to not investigate those concerning my conviction, leads me to the obvious viewpoint that I wasn’t given a fair chance. It’s a farce that there are biased judges able to pick and choose whom to convict. These people in the Swedish judicial system have been wielding the power that the public has entrusted in them, and them have done it in a manner that I hope they feel shame for the rest of their lives. They are textbook corrupt and criminal.
Instead, I would like to end my long letter with my reflections on it all. I know that I’m at a point where my chance of escaping punishment is less than one-tenth of one percent. Not having to go to jail for crimes I didn’t commit. Crimes that weren’t even committed in the first place. Crimes that surely aren’t even crimes to begin with, if they had been committed, and if they had been committed, hadn’t been so by me. It’s a bizarre situation with my distance to any real criminal liability. Still, I must spend a couple of months locked up in a Class 2 facility since there is said to be a risk that I would repeat these crimes, crimes that haven’t been committed, almost seven years ago. Crimes that, if they are to be committed, require access to high-speed net connectivity, physical machines, server halls and the like. Crimes that don’t need to be committed, since that kind of technology isn’t used any longer. And once I’m out of jail, where I’m certainly going to become increasingly bitter over the situation, I have a debt of 100 million SEK (11 million euros). Money in fantasy numbers, supposed to “compensate” for aiding and abetting the assistance of a theoretically possible crime I’m supposed to have done by doing things that didn’t happen. An economic debt to some of the world’s richest corporations. A debt that practically means I don’t have a future in Sweden as a country, if I want to live off of anything other than breadcrumbs or the goodwill of my friends. This debt is equivalent to exile, to deportation. I will need to become an economic refugee from Sweden.
This bizarre situation is one that authorities in Sweden close their eyes to. It is an insult to everything the judicial system is supposed to represent. It is a shame for the entire population. A population that doesn’t even share the opinions behind the laws I’m convicted of breaking. And it’s these things that I ask that all of us be pardoned from. The lost faith in the justice system with all the bias, all the obvious corruption, the unconstitutional orders across branches of government (ministerstyre) that were never investigated, all the ugly tactics that have been used to satisfy a trading partner high on its own power. Sweden’s judicial system has sold out individuals. That is not supposed to happen in a democracy.
Grant the people of Sweden pardon from this corruption.
 The threat from the United States of trade sanctions has since been well documented.
 Peter Althin is considered one of Sweden’s best defense lawyers.
 The association has since changed its name to The Swedish Association for Protection of Intellectual Property, sfir.se.
 Swedish district and appeals courts have a mix of law-schooled judges and random layman judges. It is supposed to create a system of checks and balances similar to the United States’ jury system. In the district court, there is but one law-schooled judge in a case.
 A Class 2 facility is a medium-security prison.
As the privacy controversy around full-body security scans begins to simmer, it’s worth noting that courthouses and airport security checkpoints aren’t the only places where backscatter x-ray vision is being deployed. The same technology, capable of seeing through clothes and walls, has also been rolling out on U.S. streets.
American Science & Engineering, a company based in Billerica, Massachusetts, has sold U.S. and foreign government agencies more than 500 backscatter x-ray scanners mounted in vans that can be driven past neighboring vehicles to see their contents, Joe Reiss, a vice president of marketing at the company told me in an interview. While the biggest buyer of AS&E’s machines over the last seven years has been the Department of Defense operations in Afghanistan and Iraq, Reiss says law enforcement agencies have also deployed the vans to search for vehicle-based bombs in the U.S.
“This product is now the largest selling cargo and vehicle inspection system ever,” says Reiss.
The Z Backscatter Vans, or ZBVs, as the company calls them, bounce a narrow stream of x-rays off and through nearby objects, and read which ones come back. Absorbed rays indicate dense material such as steel. Scattered rays indicate less-dense objects that can include explosives, drugs, or human bodies. That capability makes them powerful tools for security, law enforcement, and border control.
It would also seem to make the vans mobile versions of the same scanning technique that’s riled privacy advocates as it’s been deployed in airports around the country. The Electronic Privacy Information Center (EPIC) is currently suing the DHS to stop airport deployments of the backscatter scanners, which can reveal detailed images of human bodies. (Just how much detail became clear last May, when TSA employee Rolando Negrin was charged with assaulting a coworker who made jokes about the size of Negrin’s genitalia after Negrin received a full-body scan.)
“It’s no surprise that governments and vendors are very enthusiastic about [the vans],” says Marc Rotenberg, executive director of EPIC. “But from a privacy perspective, it’s one of the most intrusive technologies conceivable.”
AS&E’s Reiss counters privacy critics by pointing out that the ZBV scans don’t capture nearly as much detail of human bodies as their airport counterparts. The company’s marketing materials say that its “primary purpose is to image vehicles and their contents,” and that “the system cannot be used to identify an individual, or the race, sex or age of the person.”
Though Reiss admits that the systems “to a large degree will penetrate clothing,” he points to the lack of features in images of humans like the one shown at right, far less detail than is obtained from the airport scans. “From a privacy standpoint, I’m hard-pressed to see what the concern or objection could be,” he says.
But EPIC’s Rotenberg says that the scans, like those in the airport, potentially violate the fourth amendment. “Without a warrant, the government doesn’t have a right to peer beneath your clothes without probable cause,” he says. Even airport scans are typically used only as a secondary security measure, he points out. “If the scans can only be used in exceptional cases in airports, the idea that they can be used routinely on city streets is a very hard argument to make.”
The TSA’s official policy dictates that full-body scans must be viewed in a separate room from any guards dealing directly with subjects of the scans, and that the scanners won’t save any images. Just what sort of safeguards might be in place for AS&E’s scanning vans isn’t clear, given that the company won’t reveal just which law enforcement agencies, organizations within the DHS, or foreign governments have purchased the equipment. Reiss says AS&E has customers on “all continents except Antarctica.”
Reiss adds that the vans do have the capability of storing images. “Sometimes customers need to save images for evidentiary reasons,” he says. “We do what our customers need.”
By JACQUELINE LEO
I know you’ve resisted buying a computer and getting sucked into the digital world, but in a few days, you’ll be receiving a new, basic computer that I bought online. It will be delivered by FedEx directly to your home because the United States Postal Service may be out of business soon, and you’ll have to find a way to pay your bills online and communicate with your editors by email, not snail mail.
You may think I’m pulling your leg, but it’s true — USPS is on the brink of defaulting on a $5.5 billion health-care payment for retirees, who have one of the richest “Cadillac insurance plans,” better than most federal employees and private sector workers. The Postal Service is actually running out of cash and may have to close down altogether this winter.
Yep, Senator Thomas R. Carper, (D-Del.), chairman of the subcommittee that oversees USPS, told The New York Times that the situation is dire. He said, “If we do nothing, if we don’t react in a smart, appropriate way, the postal service could literally close later this year. That’s not the kind of development we need to inject into a weak, uneven economic recovery.”
You don’t have to say it — the odds of Congress reacting in a smart, appropriate way are approximately 14.6 trillion-to-one, according to a source at the Congressional Budget Office, although Jon Stewart pegs the odds at a higher 20 trillion-to-one. Nevertheless, the Postmaster General, Patrick R. Donahoe, has a plan. It starts with every American putting a bumper sticker on the back of their vehicles that says Save the Post Office. Donahoe found an old stamp image of a humpback whale and slapped it on the bumper sticker in order to make an emotional connection with drivers everywhere. (The image for buses and fuel trucks is the more massive blue whale, and baby strollers get the iconic Monstro.) The sticker is free if you buy 10 years worth of “forever stamps.”
Not a bad first step. Donahoe had other ideas, too.
IDEA: Eliminate an additional 20 percent of the workforce -- 120,000 jobs. (Ten years ago, the Postal Service employed about 900,000 workers. It’s down to 653,000 and going south.) That will not exactly help our unemployment numbers, but it makes sense. Mail volume is down 20 percent, so why do we need a bloated work force?
WHY DO IT? As a colleague of mine said, “The no-layoff clause is unbelievable. No wonder my local postman can sleep in his truck for hours at a time! And then have something like 75 accrued sick days that he'll get paid when he retires.”
WHY NOT? Because when 120,000 people “go postal,” we’ll all have to duck at once.
IDEA: Eliminate Saturday delivery and reduce the number of sorting facilities by more than half -- from 500 to 200.
WHY DO IT? Because few people really need it. If you must have something on Saturday, fax it or send it by FEDEX. It would save more than $3.1 billion a year.
WHY NOT? In an election year, ending a service could hurt local and national politicians, including the President. In stumping ground Iowa alone, 44 cities have united to save their rural postal facilities.
IDEA: Deliver mail at least one day later. Because “Premium Pay” is paid for work at night and on Sundays, relaxing service standards by 1 day permits mail processing to take place during the following day, avoiding the bulk of night (6 p.m. to 6 a.m.) and Sunday processing cost premiums. And because ground transportation is usually less costly than air, but requires longer end-to-end transit times, delivering mail one day later allows the Postal Service to shift some mail from air to ground.
WHY DO IT? We would save $1.5 billion.
WHY NOT? More people would pay their bills on line, not wanting to risk high finance charges if the check doesn’t clear on time.
But wait, there’s more! With a goal of slashing $75 billion in annual spending by $20 billion, USPS could go commercial and sell a lot more than stamps. The Times says that post offices in some countries double as banks or sell insurance or cell phones. Yet we can’t do any of those things because the postal service has an idiotic rule barring it from making money. For instance, USPS can’t deliver wine or beer. So out of desperation, the agency is considering allowing advertisements on postal trucks and in post offices, doing more “last-mile” deliveries for FedEx and UPS and offering a premium hand delivered “messenger service.”
I know what you’re thinking, Roger. It’s become standard practice in the U.S. to pay more for less. We’ll soon be paying half a buck for one forever stamp. (All the more reason to pay online.) And you probably think that the Postal Service woes are yet another sign of decline in a country that considers mail delivery part of its essential infrastructure. I wouldn’t worry too much, though. Your next best seller will probably be delivered on my Kindle, and the few brick and mortar bookstores that remain will have to ship the books the same way I’m shipping your new computer — by FedEx.