H/B Implications Watch

Drones over U.S. get OK by Congress

2012-02-11T12:07:00.002-05:00

By Shaun Waterman

Look! Up in the sky! Is it a bird? Is it a plane? It’s … a drone, and it’s watching you. That’s what privacy advocates fear from a bill Congress passed this week to make it easier for the government to fly unmanned spy planes in U.S. airspace.

The FAA Reauthorization Act, which President Obama is expected to sign, also orders the Federal Aviation Administration to develop regulations for the testing and licensing of commercial drones by 2015.

Privacy advocates say the measure will lead to widespread use of drones for electronic surveillance by police agencies across the country and eventually by private companies as well.

“There are serious policy questions on the horizon about privacy and surveillance, by both government agencies and commercial entities,” said Steven Aftergood, who heads the Project on Government Secrecy at the Federation of American Scientists.

The Electronic Frontier Foundation also is “concerned about the implications for surveillance by government agencies,” said attorney Jennifer Lynch.

The provision in the legislation is the fruit of “a huge push by lawmakers and the defense sector to expand the use of drones” in American airspace, she added.

According to some estimates, the commercial drone market in the United States could be worth hundreds of millions of dollars once the FAA clears their use.

The agency projects that 30,000 drones could be in the nation’s skies by 2020.

The highest-profile use of drones by the United States has been in the CIA’s armed Predator-drone program, which targets al Qaeda terrorist leaders. But the vast majority of U.S. drone missions, even in war zones, are flown for surveillance. Some drones are as small as model aircraft, while others have the wingspan of a full-size jet.

In Afghanistan, the U.S. use of drone surveillance has grown so rapidly that it has created a glut of video material to be analyzed.

The legislation would order the FAA, before the end of the year, to expedite the process through which it authorizes the use of drones by federal, state and local police and other agencies. The FAA currently issues certificates, which can cover multiple flights by more than one aircraft in a particular area, on a case-by-case basis.

The Department of Homeland Security is the only federal agency to discuss openly its use of drones in domestic airspace.

U.S. Customs and Border Protection, an agency within the department, operates nine drones, variants of the CIA’s feared Predator. The aircraft, which are flown remotely by a team of 80 fully qualified pilots, are used principally for border and counternarcotics surveillance under four long-term FAA certificates.

Officials say they can be used on a short-term basis for a variety of other public-safety and emergency-management missions if a separate certificate is issued for that mission.

“It’s not all about surveillance,” Mr. Aftergood said.

Law Would Put Homeland Security in Charge of Business IT Security

2012-02-07T13:27:00.000-05:00

Bringing the intelligence and efficiency of the TSA to your company. Yikes.

How would you like the Department of Homeland Security to be in charge of your IT security?

If Congress has its way the folks who run the TSA would be given the power to require better computer security of companies with systems "whose disruption could result in the interruption of life-sustaining services, catastrophic economic damage or severe degradation of national security capabilities."

Don’t worry too much, though. The decision about which companies to regulate would be made “with input from businesses.” For some reason that doesn’t make me feel any better.

This is from the bill being pushed by Senate Majority Leader Harry Reid (D-Casinos) and supported by the White House. It’s just one of 30 or so such bills currently percolating on the Hill.[*] As with much legislation, it starts with a good intention: Shielding vital infrastructure, including the power grid and water supply, from cyber attack. It’s believed that as much as 85 percent of the nation’s critical infrastructure is owned and operated by private companies.

And, as with much legislation, it basically extends government power without actually improving anything. Businesses already know hacking is costing them money – this is really the only incentive needed for them. Fortunately and unsurprisingly, a lot of industry groups are lobbying against this because of the additional costs it would mean. What businesses really want is a law that would give them legal protections so they can share information with authorities without risking antitrust or privacy violations.

There are some helpful things the government could be doing on this issue. First is facilitating the sharing of best security practices by companies in control of vital infrastructure. The other is to make sure all levels of government follow vigorous security protocols and require the same from outside contractors.

There are many cases where government regulation of business is needed. Those mostly have to do with guaranteeing individual rights and maintaining the free and fair operations of markets. Cybersecurity is one that the profit motive is going to handle just fine.

Can porn be copyrighted? One file-sharing defendant says no

2012-02-07T12:16:00.000-05:00

By Matthew Lasar

The strange case of Hard Drive Productions versus "anyone that the video company's lawyers suspect of illegally downloading its pornographic movies" has taken a new and interesting twist. One of the nearly 1,500 "Does" being sued for allegedly sharing a Hard Drive film online has resorted to what seems, at first glance, like a novel defense. In addition to her insistence that she never actually downloaded "Amateur Allure Jen," Liuxia Wong of Solano County, California argues that copyright law doesn't even apply to smut clips. They are not copyrightable, and therefore no infringement occurred.

The matter is quite simple, Wong's petition for declaratory relief explains to the federal court in San Francisco. Article I, Section 8, Clause 8 of the US Constitution defines the purpose of copyright: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

Notice the words "science" and "useful arts" in the aforementioned sentence? Since when did movies with acronyms like "P.O.V." or "M.I.L.F." qualify as either? Therefore, "copyright is authorized only for works which promote the progress of science and the useful arts," says Wong's lawyer from the firm of Murphy, Pearson, Bradley & Feeney.

"Early Circuit law in California held that obscene works did not promote the progress of science and the useful arts, and thus cannot be protected by copyright," the brief also notes, then reiterates the point another seven times:

86. Hard Drive's work does not promote the progress of science.
87. Hard Drive's work does not promote the useful arts.
88. Hard Drive has judicially admitted that its work is adult pornography.
89. Hard Drive's work depicts obscene material.
90. Plaintiff is informed and believes, and thereon alleges that to create the work, Hard Drive and its agents and/or its employees violated laws which prohibited pimping, pandering, solicitation and prostitution, including any claims of conspiracy.
91. Hard Drive's work depicts criminal acts and/or conduct.
92. Hard Drive's work is not copyrightable.

Holy utilitarianism, Batman . . . is this true? Do the language and stated assumptions of the Copyright Act really exempt garden variety smut video from its protections? And if so, how are people being sued in porn file-sharing cases across the country?

Swarm questions

Before we wade too deep into these particular waters, it's worth noting that the great Hard Drive anti-piracy crusade is a fairly dubious affair. Last August, a California judge took a meat-axe to the company's claim that 188 alleged P2P downloaders could be sued together in one filing.

"Even if the IP addresses at issue in this motion all came from a single swarm, there is no evidence to suggest that each of the addresses 'acted in concert' with all of the others," federal Magistrate Judge Joseph Spero told the anti-piracy team of Steele Hansmeier. "In fact, the nearly six-week span covering the activity associated with each of the addresses calls into question whether there was ever common activity linking the addresses in this case."

Spero then reduced the case to one defendant. Undaunted, Hard Drive lawyers went to a different court in Washington, DC with another 1,500 Does, plus a generous dose of spleen for the advocacy group Electronic Frontier Foundation (EFF).

EFF is "opposed to any effective enforcement and litigation of intellectual property law," explains one of their latest filings. "A radical interest group," the tirade continues, EFF has a mission that is "radical, quasi-anarchist, and intrinsically opposed to any effective enforcement of intellectual property rights."

But the odd accusations don't help Liuxia Wong. Following her ISP's disclosure of her name, address, and telephone number to Hard Drive's lawyers, Wong received a letter demanding that she settle the action for $3,400 or face a $150,000 lawsuit. In response, she told Hard Drive's attorneys that she did not download the movie in question and that she did not know who did. Her ISP set up her Wi-Fi system, she said. She believed the Hard Drive letter was something of a shakedown.

"Plaintiff is informed and believes, and thereon alleges that Hard Drive knew that plaintiff would incur substantial costs and attorneys' fees if her deposition were to proceed, and used this information to extract a settlement from plaintiff," her attorneys say. They responded by challenging the very core of the case, the copyrights at issue in Hard Drive's films.

So lets take a look at these early California copyright decisions that Murphy, Pearson lawyers say lend credence to their legal case. In correspondence with Ars, they pointed to two.

Black rooks and hotties

In 1867, California's federal circuit court system heard the case of Martinetti v. Maguire. The latter was a playwright who brought suit against the former, in large part because Martinetti's ribald play "The Black Crook" appeared to be little more than a cheap knockoff of Maguire's earlier play "The Black Rook." But a judge overseeing the matter saw little point in pursuing the case much further, because neither production could be construed as a copyrightable work:

Now it cannot be denied that this spectacle of the Black Crook only attracts attention as it panders to a prurient curiousity or an obscene imagination by very questionable exhibitions and attitudes of the female person. True, the lawfulness of such an exhibition depends upon the law of the place where it takes place. But when the author, inventor or proprietor thereof asks the power of this Court to protect him in the exclusive right to make such an exhibition under the copyright act, the matter assumes a very different aspect.

Thus, with a drama "which is grossly indecent, and calculated to corrupt the morals of the people," the judge continued, its exhibition "neither 'promotes the progress of science or useful arts,' but the contrary. The constitution does not authorize the protection of such productions, and it is not to be presumed that congress intended to get beyond its power in this respect to secure their 'authors and inventors the exclusive right' to the use of them."

"Upon this ground," the judge concluded, "I very much doubt whether the spectacle of the Black Crook is entitled to the benefit of copyright, even if it were admitted that it was a 'dramatic composition'."

Then there was the 1898 matter of Broder v. Zeno Mauvais Music Company. In this instance, the rightsholders to a song called "Dora Dean" and the owners of a tune called "Ma Angeline" sued each other for intellectual piracy.

"It is conceded that the melody of the two songs is substantially the same," a circuit judge noted. Both songs may also be considered "colored melodies" and come from "colored gentlemen," he added. From this point of departure, the court launched into a very detailed history of the two tunes, where and how they were composed, and which possibly came first. In the end, however, all this was moot for the judicial panel.

The pertinent question, the opinion explained, was whether the complainants had any grounds for a copyright suit, given a prominent line in the "Dora Dean" song: "She's the hottest thing you ever seen."

"In other words, the question arises whether the use of the word 'hottest' in the connection referred to renders the song morally objectionable," the court said, "musical compositions of an immoral character not being protected by copyright." To bolster this statement of legal fact, the judge cited Martinetti v. Maguire.

"I am of the opinion that the word 'hottest'" has "an indelicate and vulgar meaning and that for that reason the song cannot be protected by copyright," the judge concluded.

Beyond the power of government?

We should not be surprised by the delicacy these courts displayed towards such mild (by our standards) indiscretions. The same attitude also extended to First Amendment law. As late as 1915, in Mutual Film Commission v. State of Ohio, the Supreme Court upheld the power of a state censorship board to regulate movies. Films, the high court concluded:

are mere representations of events, of ideas and sentiments published and known; vivid, useful, and entertaining, no doubt, but, as we have said, capable of evil, having power for it, the greater because of their attractiveness and manner of exhibition. It was this capability and power, and it may be in experience of them, that induced the state of Ohio, in addition to prescribing penalties for immoral exhibitions, as it does in its Criminal Code, to require censorship before exhibition, as it does by the act under review. We cannot regard this as beyond the power of government.

It would not be until the early 1950s that the Supremes would rethink this logic, upholding a movie theater's right to show a film that made light fun of the Catholic Church.

But any legal team today trying to build on early California cases to repel the Hard Drive Productions onslaught will have to explain its way past several crucial, and much more recent, decisions.

The first is that the Supreme Court has of late weighed in on the relationship between copyright infringement disputes and First Amendment concerns. In Eldred v. Ashcroft (2003), the high court shot down a First Amendment challenge by publishers to the Copyright Extension Act of 1998, a law which added an extra two decades of protection to existing works.

"The Copyright Clause and First Amendment were adopted close in time," Justice Ruth Bader Ginsburg argued for the majority. "This proximity indicates that, in the Framers's view, copyright's limited monopolies are compatible with free speech principles. Indeed, copyright's purpose is to promote the creation and publication of free expression."

The Supremes's view that copyright enhances free speech could pose a hazard to any argument suggesting that certain kinds of speech don't deserve protection. But the highest hurdle that Wong v. Hard Drive faces can be found in a second case, the 1979 matter of Mitchell Brothers v. Cinema Adult Theater.

A dangerous undertaking

In that legal affair, a movie theater not affiliated with the Mitchell Brothers's then-famous adult operation began exhibiting one of the duo's most noted X-rated films, Behind the Green Door. When Mitchell Brothers lawyers sued, a lower court agreed with Cinema Adult Theater's contention that the movie was obscene, thus the "unclean hands" doctrine barred the porn flick makers from collecting damages. (The "unclean hands" principle requires plaintiffs to be free from wrongdoing themselves when filing suit.)

But the Fifth Circuit Court of Appeals saw the matter very differently. For the appeals court panel in question, the Copyright Act's phrase "to promote the Progress of Science and useful Arts" was best served by letting the public decide which works met these goals, trusting the public to favor "creators of useful works and to deny creators of useless works any reward."

This intent, the Fifth Circuit argued, was evident in the legislative deliberations leading to the Copyright Act of 1909. The justices also saw many hazards in approaching the matter subjectively:

It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits. At the one extreme, some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke. It may be more than doubted, for instance, whether the etchings of Goya or the paintings of Manet would have been sure of protection when seen for the first time. At the other end, copyright would be denied to pictures which appealed to a public less educated than the judge. Yet if they command the interest of any public, they have a commercial value, it would be bold to say that they have not an aesthetic and educational value, and the taste of any public is not to be treated with contempt.

And the Ninth Circuit Court of Appeals, which covers Northern California, chose to tread lightly in a 1973 copyright infringement case between publishers of horse race handicapping books. "There is nothing in the Copyright Act to suggest that the courts are to pass upon the truth or falsity, the soundness or unsoundness, of the views embodied in a copyrighted work," the appeals court panel concluded.

Where does this leave our Hard Drive Productions case? Wong's attorneys concede that later Ninth Circuit decisions departed from the earlier rulings they cite. But they hang their case on one argument: given the absence of any subsequent en-banc (full judicial panel) Ninth Circuit (as opposed to Fifth) rulings or Supreme Court precedents, the later decisions "do not constitute binding precedent."

It all seems a bit like a Hail Mary pass, but the case does shed light on how much our thinking about copyright and intellectual property has changed since the Gilded Age—when a judge could toss an infringement suit out into the street because the lyrics of the song in question were a little too "hot" for him.

Zapping the brain into "expert" mode

2012-02-07T11:50:00.002-05:00

By Maggie Koerth-Baker

The "flow state" is how neuroscience researchers describe that zone you can get into when you're doing something that you've become highly skilled at. It's a zen-like place in your brain — that state where you lose track of time doing something that you enjoy doing for its own sake, and where the job of doing the task seems to become something you don't even have to think about. You just do it, and you do it right.

The catch, of course, is that usually it takes a lot of heavy work to get to the point where the flow can take over. This is where Malcolm Gladwell's 10,000 hours of practice comes into play. But, over the years, scientists have learned that there are some ways around that 10,000-hour rule. Some people just seem to pick up on the flow easier than others, for instance.

If your brain isn't just naturally inclined toward the flow, though, there is the option of zapping it into line. This is called transcranial direct current stimulation—basically running a very small electric current through specific parts of the brain. In some studies, and for some tasks, it's been shown to induce a feeling very much like a flow state, and possibly make it easier for people to get to a high level of skill faster. Last spring, Pesco wrote about some of the research that's being conducted on this intriguing but still-not-proven technique. Recently, New Scientist reporter Sally Adee tried it out, and saw a significant short-term improvement in her ability to spot and hit targets in a video shooter game.

The mild electrical shock is meant to depolarise the neuronal membranes in the region, making the cells more excitable and responsive to inputs. Like many other neuroscientists working with tDCS, Weisend thinks this accelerates formation of new neural pathways during the time that someone practises a skill. The method he is using on me boosted the speed with which wannabe snipers could detect a threat by a factor of 2.3

It's not yet clear why some forms of tDCS should bring about the flow state. After all, if tDCS were solely about writing new memories, it would be hard to explain the improvement that manifests itself as soon as the current begins to flow.

One possibility is that the electrodes somehow reduce activity in the prefrontal cortex - the area used in critical thought, which Csikszentmihalyi had found to be muted during flow. Roy Hamilton, a neuroscientist at the University of Pennsylvania in Philadelphia, thinks this may happen as a side effect of some forms of tDCS. "tDCS might have much more broad effects than we think it does," he says. He points out that some neurons can mute the signals of other brain cells in their network, so it is possible that stimulating one area of the brain might reduce activity in another.

The first thing I thought of when I read this: The way drinking one (but not more than two) beers can change the way I approach a billiards game. It doesn't improve my skills, per se—I don't suddenly become graceful with a pool cue. But when it's a game that I have some skill at already, like table hockey, one beer is often just enough to allow me to stop over-thinking and just play the game ... making it feel like I'm better at it then than I am stone-cold sober. I'd be really interested to know if/how these experiences are related.

Beyond SOPA: ACTA, WIPO, and the Global Copyfight

2012-02-05T13:26:00.000-05:00

Before Ice Cream Shop Can Open, City’s Slow Churn

2012-02-05T02:38:00.000-05:00

By SCOTT JAMES

Two years of rules and permits later, the Ice Cream Bar is open.

If true, then the saga of a new ice cream shop seems to indicate that the city needs a good chiropractor.

The Ice Cream Bar opened Jan. 21 in the Cole Valley neighborhood — an homage to the classic parlors of the 1930s, complete with vintage soda fountain and lunch counter seating. It has become an immediate sensation, packed with both families and the foodie crowd, savoring upscale house-made ice creams and exotic sodas (flavorings include pink peppercorn and tobacco). The shop also employs 14 full- and part-time workers.

But getting it opened wasn’t easy.

“Many times it almost didn’t happen,” said Juliet Pries, the owner, with a cheerful laugh.

Ms. Pries said it took two years to open the restaurant, due largely to the city’s morass of permits, procedures and approvals required to start a small business. While waiting for permission to operate, she still had to pay rent and other costs, going deeper into debt each passing month without knowing for sure if she would ever be allowed to open.

“It’s just a huge risk,” she said, noting that the financing came from family and friends, not a bank. “At several points you wonder if you should just walk away and take the loss.”

Ms. Pries said she had to endure months of runaround and pay a lawyer to determine whether her location (a former grocery, vacant for years) was eligible to become a restaurant. There were permit fees of $20,000; a demand that she create a detailed map of all existing area businesses (the city didn’t have one); and an $11,000 charge just to turn on the water.

The ice cream shop’s travails are at odds with the frequent promises made by the mayor and many supervisors that small businesses and job creation are top priorities.

The matter has also alarmed some business leaders, who point out that few small ventures could survive such long delays.

“Someone of lesser fortitude would have left three months into it,” Ted Loewenberg, president of the Haight Ashbury Improvement Association, said of Ms. Pries. “Through these hard times we’ve heard all the rhetoric about streamlining the process, about one-stop shopping. It hasn’t happened.”

That could soon change. An ordinance easing the process for opening a small business is expected to be considered by the supervisors within weeks. It has already been approved by the planning commission.

“The city has had the reputation of being a difficult place, and a hostile place, to do business,” said Mark Farrell, the city supervisor who has the most private-sector experience (he still operates a venture capital firm). “We’re changing the dialogue.”

According to Mr. Farrell, a critical shift occurred last year when supervisors approved a tax incentive to keep the headquarters of Twitter, the social network, in the city after the company threatened to move.

But he admitted that such actions were relatively easy compared with reforming the city’s entrenched bureaucracy. “To change the inner workings of government is a longer proposition,” he said.

Christina Olague, a former Planning Commission president who was recently appointed city supervisor, said that planning codes governing businesses had ballooned over the years to become hundreds of pages long. “It’s so convoluted,” she said. “It’s so difficult for these businesses to move ahead.”

Even the planning department itself is calling for reform. “Hello City Planner,” an animated cartoon produced by the department and posted on its Web site, depicts a litany of farcical city hassles faced by a woman applying to sell ice cream.

“Wow! That’s a long time and expensive,” the ice cream lady says after the planning employee in the animation explains the slow process and high fees.

Cases like Ms. Pries’s inspired the video, although some believe her runaround was exceptionally absurd. Even after she acceded to all the city’s demands, her paperwork sat unprocessed for months. Ms. Pries would not say exactly how much it all cost, including construction, but smiled and nodded when asked if it was in the hundreds of thousands of dollars.

And yet, remarkably, she does not complain. Ms. Pries is as effervescent as her sodas, and excited about her prospects — looking ahead, rather than back. Perhaps this optimism is why she finally prevailed, when so many others would have given up.

Seattle library lets man watch porn on computers despite complaints

2012-02-05T02:31:00.000-05:00

By Eric Pfeiffer

"We're a library, so we facilitate access to constitutionally protected information. We don't tell people what they can view and check out," Seattle Public Library spokeswoman Andra Addison told Seattle PI. "Filters compromise freedom of speech protected by the First Amendment. We're not in the business of censoring information."

Seattle PI reports that when library patron Julie Howe saw the man, she asked him to move to another computer. He refused. When Howe asked the librarian to intervene, she also refused.

"She could see the screen from the information desk where we were standing and was sympathetic, but said that the library doesn't censor content," Howe wrote in an email published Tuesday on the neighborhood blog, Lake City Live.

"And they can't be in the business of monitoring what their patrons are doing at any given computer."

However, in 2010 the Washington State Supreme Court ruled in a 6-3 decision that libraries can do exactly that. The ruling came after the ACLU sued a rural library district that had attempted to filter porn from its computers.

"A public library has traditionally and historically enjoyed broad discretion to select materials to add to its collection of printed materials for its patrons' use," the court wrote in its decision. "We conclude that the same discretion must be afforded a public library to choose what materials from millions of Internet sites it will add to its collection and make available to its patrons."

Howe says she respects, understands and agrees with the freedom of speech laws that protect the man's right to view pornography, but nonetheless wishes there was a compromise for the library's other patrons.

"I have had extensive conversations with the library about this incident, as well as with the police and local representatives," wrote Howe. "The man's right to access constitutionally protected information is fully protected (which I'm not in argument with), but our right not to be inadvertent viewers is not."

Other library patrons have complained about similar incidents, including those involving young children who were exposed to pornographic images being viewed by other patrons.

The dilemma was summed up by another library patron, Jessica Christensen, who told Seattle PI, "What I find ironic is that you can't talk too loudly at the Seattle Public Libraries or you'll be asked to keep it down so as not to distract the other patrons. You know, the patrons viewing pornography."

Muslim man: My workplace quip made me a terror suspect

2012-02-05T02:08:00.000-05:00

By Sidhartha Banerjee

MONTREAL - A casual text message to work colleagues encouraging them to ''blow away'' the competition at a trade show allegedly plunged a Muslim man into a terrorism probe.

Telecommunications sales manager Saad Allami says the innocent message, aimed at pumping up his staff, has had devastating consequences on his life.

The Quebec man says he was arrested by provincial police while picking up his seven-year-old son at school. A team of police officers stormed into his home, telling his wife she was married to a terrorist. And his work colleagues were detained for hours at the U.S. border because of their connection to him.

Those are the allegations Allami makes in a lawsuit filed last month.

The Moroccan native is seeking $100,000 from the Quebec provincial police force, one of its sergeants, and the provincial government. The six-figure sum is being sought for unlawful detention, unlawful arrest, loss of income and damage to his reputation.

On Jan. 21, 2011, Allami sent a text message to colleagues urging them to "blow away" the competition at a trade show in New York City.

According to his lawsuit, he was arrested without warning by police three days later and detained for over a day while his house was searched. During his detention, a team of police officers allegedly conducted an "intrusive" four-hour search.

"The whole time, the officers kept repeating to the plaintiff's wife that her husband was a terrorist," the filing reads.

"The treatment of the plaintiff and his wife was cavalier, illegal, aggressive, accusatory, and in violation of their most fundamental rights."

Allami, who was 40 when he was arrested, says he has no links to terrorist organizations or the Islamic movement and that police acted without any evidence or research. He has never been charged in the affair. A search of Quebec's courthouse database finds no other references to him, either.

However, Allami says he hasn't been able to get a certificate of good conduct, which he would need in order to get a job working in finance.

His allegations have not been proven in court and the application is to be presented at the Montreal courthouse on March 5.

Provincial police spokesman Guy Lapointe says the force is aware of the case but will not comment as it is before the courts. A Justice Department spokesperson also declined to comment.

Police had in Laval, Que., where he applied for the certificate, found terrorism accusations and public mischief on his file, even though his public file shows no signs of the allegations.

"Without the certificate of good conduct, the plaintiff can no longer work in his profession," the document states.

Allami is being represented by Julius Grey, a well-known Montreal lawyer.

Contacted earlier this week, Grey said neither he nor his client wished to speak about the facts.

"It presents interesting issues of law and profiling but I feel uncomfortable debating it outside the courtroom," Grey said.

The motion he filed makes allusions to the profiling issue.

"Without any evidence, and without any follow-up, the (provincial police) just cannot go about arresting North Africans, of Muslim persuasion, inferring they are terrorists, giving them a police record, and destroying their reputation, credibility and livelihoods," the motion reads.

Allami says he sent the text message in French and used the word ''exploser,'' a term he claims is commonly used in finance to mean grow or succeed.

His case has surfaced after another story about an unexpected national-security case, triggered by what appeared to be a meaningless comment.

There have been reports of two British tourists who said they were banned from entering the United States — with one of them handcuffed, arrested and flagged as a threat by the Department of Homeland Security over Twitter tongue-in-cheek messages about going to ''destroy America'' and dig up Marilyn Monroe's body.

Woman, 25, asked for ID to buy teaspoons as they could be used as drug paraphernalia

2012-02-05T01:03:00.002-05:00

A woman was asked to prove her age when buying a pack of teaspoons as a shop worker claimed they could be used as drug paraphernalia. Elinor Zuke, 25, was told by the self-service checkout at Sainsbury's that she needed age verification as she tried to buy a £1.19 pack of spoons.

When Ms Zuke, a reporter on trade magazine The Grocer, asked why the purchase had to be verified, she was told that the six-pack of spoons 'could be used as drug paraphernalia.' A shop worker then intervened and said it was because of the risk they could be used for drugs - heroin users 'cook up' the drug in teaspoons.

Heroin, which comes in powder form, is put in the spoon with water and citric acid and heated with a lighter to rid it of any impurities. Ms Zuke said: 'I could not understand what the problem was when the supervisor said it was because they could be used as drug paraphernalia I was completely shocked.

'I would imagine the vast majority of spoons sold by Sainsbury's are used for nothing more nefarious than stirring a cup of tea. Having to prove I was over 18 to buy them seemed total madness.' The supermarket giant apologised for the blunder at the store in West Green, Crawley, West Sussex, and blamed a fault in their system.

Lawsuit Alleges Another Isolated Incident

2012-02-04T23:09:00.002-05:00

In Dallas:

According to the complaint, which made its way to Courthouse News yesterday, Cantu, a diesel mechanic, was making his lunch January 22, 2010, when he saw a few cops streaking across his yard. A deafening explosion shook the room as a flash bomb shot through the door. Nearly 20 officers crashed in.

“Get on the ground!” they allegedly ordered him. Cantu, according to the complaint, obliged and was zipcuffed. Inexplicably, the filing claims, the officers kicked and punched him until he was unconscious, lying in a pool of his own blood on the kitchen floor. Meanwhile, they searched his house and allegedly didn’t find what they were after. Cantu’s alleged butcher’s bill: a broken orbital bone, a broken nose, a concussion, traumatic brain injury, a loss of vision in his left eye and loss of hearing in his left ear. According to his complaint, the “injuries required surgical intervention and caused significant scarring and disfigurement.”

Cantu was arrested but never charged with a crime.

This one gets stranger, in that there seems to be no record of the incident anywhere. And Cantu’s lawyers didn’t respond to the Dallas Observer’s request for comment.

Congratulations, University of North Carolina-Charlotte

2012-02-02T23:06:00.000-05:00

You now have your very own SWAT team.

“The purpose for creating the UNCC SWAT Team is to protect the community and prevent the loss of life,” said Lieutenant Josh Huffman of Campus Police. “We must be prepared to respond to high risk situations such as those tragedies that occurred at Virginia Tech and Columbine.” . . .

With all this training it would seem these men would be anxious to use it, but they’re not. Considering the conditions needed for the men to utilize their past training, many, including Baker, never hope to see that day.

“I would be the first to admit that I hope we are never placed into action,” Baker said. “However, it is critical to be prepared to respond to a variety of serious/high risk incidents that have occurred on campuses throughout the nation.”

Yes. Virginia Tech and Columbine. Now, let’s look at the numbers: Any given middle school, high school, or college in America can expect to have exactly one homicide on its campus every 12,000 years. So how long before the UNC-Charlotte SWAT team feels the need to justify its existence by expanding its mission? I predict they’re serving drug warrants and raiding frat houses within a year.

Dear Hollywood: An Open Letter to the Hardworking Men and Women in the Entertainment Industries

2012-02-02T23:00:00.000-05:00

Dear Hollywood,

You don’t need us to tell you that your position on anti-"piracy" laws has been unpopular recently. Last month’s historic protests, with millions of Americans registering their opposition, have made that point pretty clear. Instead, we’re writing today to tell you that the Internet can be great for creators and their community, but your own leadership refuses to recognize and take advantage of its promise. It seems they’d rather spend your membership dues on lawyers, lobbyists and astroturf than innovation. We suspect many of you are realizing this, especially when you see how successful new business models can be.

We humbly suggest that you stand up and tell them to either embrace the age of the Internet or get out of the way so that new, forward-thinking industry leaders can take their place.

Hollywood’s leadership painted the push for the Stop Online Piracy Act (SOPA) and the PROTECT IP Act (PIPA) as a defense of your jobs — a stance that was cynical at best, as they know the only jobs the bill would save were those of their lawyers. What is worse, by framing a stance against SOPA and PIPA as a betrayal of creators everywhere, they’ve poisoned the debate about the legislation and attempted to mislead you into fighting for bills that won’t put a dent in online infringement but will interfere with the development of ways for creators like you to profit from Internet technologies.

An honest discussion of proposed legislation needs to start with the questions: Is this law necessary? And is it the best solution to the problem? Americans stood up against SOPA and PIPA not because they are “corporate pawns,” as MPAA Chairman Chris Dodd says, but because the answer to both of these questions is a big no.

For one thing, although the studio heads and MPAA leadership claim this legislation is about your jobs, they’re curiously silent about the fact that entertainment spending and revenues are up across the board. In the words of one recent study, the sky isn’t falling — it’s rising. So if you’re concerned about your job, please realize the primary threat does not come from unauthorized downloading. The actor Wil Wheaton suggests that the problem might be closer to home:

I have lost more money to creative accounting, and American workers have lost more jobs to runaway production, than anything associated with what the MPAA calls piracy.

Moreover, as the publisher Tim O’Reilly has explained for a decade now, “obscurity is a far greater threat to authors and creative artists than piracy.” The Internet is the best tool for publicity and distribution the world has ever known – if you know how to use it.

And though the handful of executives at the top might not have realized that yet, individual creators among you have reached this conclusion and are already profiting from it. At last week’s Sundance festival, even as Dodd and others were lamenting the web’s impact on film, ten percent of the films were financed by pledges through the online fundraising platform Kickstarter. And after film, music projects are Kickstarter’s second largest funding recipients. The music publishing platform Bandcamp now regularly pays out a million dollars to artists each month through sales made on the site. Some of those sales are even made to people who were looking for free content, but were enticed by the friendly purchase process.

Even some label executives, like Craig Davis at EMI, have realized that unauthorized downloading is "a service issue." Or to put it simply, as the musician Jonathan Coulton has written: "Make good stuff, then make it easy for people to buy it. There’s your anti-piracy plan."

The tech community loves creativity, and it wants to support artists, but it’s got a real problem with the people who run Hollywood. As long as it’s worried about Hollywood leadership doing damage to civil liberties and online freedom, the kind of profitable partnerships we know are possible will be difficult to make.

We’ve seen this movie before, and we know how it ends. The right answer to the question that the Internet raised isn't to demonize the tech community and innovators. That strategy failed dramatically against earlier technologies like the VCR, which MPAA President Jack Valenti compared to "the Boston strangler" in a 1982 testimony to Congress. Of course, that innovation opened up the home video market, which is now the source of nearly half of all studio revenue.

SOPA and PIPA were a step in the wrong direction, but it’s not too late to turn this ship around. Please, tell your leaders to support innovation — or get new leaders.

Best of luck,
The Internet

Do You Like Online Privacy? You May Be a Terrorist

2012-02-02T15:00:00.000-05:00

<click topic for flyer>

Public Intelligence

A flyer designed by the FBI and the Department of Justice to promote suspicious activity reporting in internet cafes lists basic tools used for online privacy as potential signs of terrorist activity. The document, part of a program called “Communities Against Terrorism”, lists the use of “anonymizers, portals, or other means to shield IP address” as a sign that a person could be engaged in or supporting terrorist activity. The use of encryption is also listed as a suspicious activity along with steganography, the practice of using “software to hide encrypted data in digital photos” or other media. In fact, the flyer recommends that anyone “overly concerned about privacy” or attempting to “shield the screen from view of others” should be considered suspicious and potentially engaged in terrorist activities.

Logging into an account associated with a residential internet service provider (such as Comcast or AOL), an activity that could simply indicate that you are on a trip, is also considered a suspicious activity. Viewing any content related to “military tactics” including manuals or “revolutionary literature” is also considered a potential indicator of terrorist activity. This would mean that viewing a number of websites, including the one you are on right now, could be construed by a hapless employee as an highly suspicious activity potentially linking you to terrorism.

The “Potential Indicators of Terrorist Activities” contained in the flyer are not to be construed alone as a sign of terrorist activity and the document notes that “just because someone’s speech, actions, beliefs, appearance, or way of life is different; it does not mean that he or she is suspicious.” However, many of the activities described in the document are basic practices of any individual concerned with security or privacy online. The use of PGP, VPNs, Tor or any of the many other technologies for anonymity and privacy online are directly targeted by the flyer, which is distributed to businesses in an effort to promote the reporting of these activities.

Ranger zaps off-leash dog walker with shock weapon

2012-02-02T04:01:00.000-05:00

Jill Tucker, Chronicle Staff Writer

A Montara man walking two lapdogs off leash was hit with an electric-shock gun by a National Park Service ranger after allegedly giving a false name and trying to walk away, authorities said Monday.

The park ranger encountered Gary Hesterberg with his two small dogs Sunday afternoon at Rancho Corral de Tierra, which was recently incorporated into the Golden Gate National Recreation Area, said Howard Levitt, a spokesman for the park service.

Hesterberg, who said he didn't have identification with him, allegedly gave the ranger a false name, Levitt said.

The ranger, who wasn't identified, asked Hesterberg to remain at the scene, Levitt said. He tried several times to leave, and finally the ranger "pursued him a little bit and she did deploy her" electric-shock weapon, Levitt said. "That did stop him."

San Mateo County sheriff's deputies and paramedics then arrived and Hesterberg gave his real name, the park spokesman said.

Hesterberg, whose age was not available, was arrested on suspicion of failing to obey a lawful order, having dogs off-leash and knowingly providing false information, Levitt said.

He was then released. He did not return a phone call seeking comment.

Witnesses said the use of a stun gun and the arrest seemed excessive for someone walking two small dogs off leash.

"It was really scary," said Michelle Babcock, who said she had seen the incident as she and her husband were walking their two border collies. "I just felt so bad for him."

Babcock said Hesterberg had repeatedly asked the ranger why he was being detained. She didn't answer him, Babcock said.

"He just tried to walk away. She never gave him a reason," Babcock said.

The ranger shot Hesterberg in the back with her shock weapon as he walked off, Babcock said.

"We were like in disbelief," she said. "It didn't make any sense."

Rancho Corral de Tierra has long been an off-leash walking spot for local dog owners. In December, the area became part of the national park system, which requires that all dogs be on a leash, Levitt said.

The ranger was trying to educate residents of the rule, Levitt said.

The park service is investigating the incident, he said.

Dutch Supreme Court: Forcing teen to drop virtual objects in online game was real-world theft

2012-01-31T18:23:00.000-05:00

Online game theft earns real-world conviction

The amulet and mask were a 13-year-old boy's virtual possessions in an online fantasy game. In the real world, he was beaten and threaten with a knife to give them up.

The Dutch Supreme Court on Tuesday upheld the theft conviction of a youth who stole another boy's possessions in the popular online fantasy game RuneScape. Judges ordered the offender to perform 144 hours of community service.

Only a handful of such cases have been heard in the world, and they have reached varying conclusions about the legal status of "virtual goods" _ and whether stealing them is real-world theft.

The suspect's lawyer had argued the amulet and mask "were neither tangible nor material and, unlike for example electricity, had no economic value."

But the Netherlands' highest court said the virtual objects had an intrinsic value to the 13-year-old gamer because of "the time and energy he invested" in winning them while playing the game.

The court did not release the offender's name, only his year of birth _ 1992. It said he and another youth beat and kicked the boy and threatened him with a knife until he logged into RuneScape and dropped the objects in 2007.

One of the thieves, who was also playing the game, was then able to pick up the items, making them his virtual property. Both were convicted by a lower court in 2009, but only one of them had appealed to the Supreme Court.

EFF Asks Judge to Prevent ‘Catch-22’ in Porn-Downloading Lawsuit

2012-01-30T15:12:00.000-05:00

Defendants Told They Must Reveal Their Identities Before Fighting to Protect Anonymity

San Francisco - The Electronic Frontier Foundation (EFF) has asked a federal judge in Washington, D.C., to protect the identities of individuals sued in a mass copyright lawsuit involving pornographic materials.

In this case, adult film company Hard Drive Productions sued 1495 unnamed Internet users, claiming they illegally downloaded copyrighted pornographic material. Some of these defendants moved to quash subpoenas aimed at revealing their identity. Many filed those motions under seal, to protect their anonymity until the motions are decided.

Last month, a judge issued a "Catch-22" order, requiring these individuals to reveal their identities before their motions – which were made to protect their identities – could proceed. In a friend of the court brief filed Monday, EFF argues that this requirement could induce defendants to settle their lawsuits in order to avoid the embarrassment, humiliation, or expense, instead of getting to the merits of the case.

"These subpoenas need to be considered in the context in which this case was brought," said EFF Staff Attorney Mitch Stoltz. "The plaintiffs here hope to take advantage of the stigma associated with pornography – as well as the threat of an expensive court battle – to induce people to settle no matter what their defenses might be. If defendants can't fight the exposure of their identities without exposing their identities, then the plaintiffs have already won."

The case is one of a growing number of mass copyright lawsuits that do not appear to be filed with any intention of litigating them. Instead, once identities of suspected infringers are obtained from ISPs, the plaintiffs send settlement letters offering to make the lawsuit go away for a few thousand dollars. A ruling on whether a film company may obtain identities of anonymous Internet users may be the last chance for defendants to be heard by the court.

EFF's brief explains both the speech implications of the ruling and the importance of the court rules that protect defendants, given the numerous ways these mass lawsuits violate due process.

"All that the plaintiffs need here to pursue their settlement shake-down scheme is the identity of the anonymous defendants," said EFF Intellectual Property Director Corynne McSherry. "These defendants have a First Amendment right to argue for their anonymity without the court forcing them to moot that argument from the start. We're asking for these motions to quash to go forward without requiring them to be unsealed, and we're also asking the court to throw this case out given the basic due process flaws."

For the full amicus brief:
https://www.eff.org/document/amicus-brief-hard-drive-productions-v-does-1-1495

For more on copyright trolls:
https://www.eff.org/issues/copyright-trolls

Contacts:

Corynne McSherry
Intellectual Property Director
Electronic Frontier Foundation
corynne@eff.org

Mitch Stoltz
Staff Attorney
Electronic Frontier Foundation
mitch@eff.org

Is it legal to stop people from selling their used games?

2012-01-30T14:11:00.000-05:00

By Kyle Orland

If a platform holder wants to make your used games as useful as this disc fragment, that's their legal right.

Recent stories about potential technical efforts to limit the future playability of used games, as well as commercial efforts to limit the content included with used copies, got us wondering: is it actually legal to hinder someone from reselling a game (or piece of a game) that they legally bought in the first place?

At first glance, such efforts would seem to fall afoul of the first-sale doctrine. First established in a 1908 Supreme Court case and codified into law in 1976, the doctrine basically gives the initial purchaser wide-ranging rights to the use of the product they've bought, including the right to sell it to a new owner.

So if a retail game comes with online-activated DRM or some other method for preventing a second owner from playing, doesn't that go against this longstanding legal principle? Probably not, according to Electronic Frontier Foundation Intellectual Property Director Corryne McSherry. While the first-sale doctrine says a company can't stop you from selling, giving away or even breaking your legally purchased software, "I don’t think it is binding on others to assist you in doing all of those things," she says.

"I think the first-sale doctrine... would say you have a right to sell your old game... and you have the right to purchase a used game... but the first-sale doctrine doesn’t require somebody to build a used book store, if you know what I mean," she continued. In other words, just because you can sell a used game doesn't mean the platform maker has to make it easy, or even possible, for the new owner to play it.

It's an odd distinction, and one that's dictated by the still legally murky world of the End User License Agreement. Most software these days, including games, comes with such a EULA, saying the initial purchaser is just a licensee and isn't allowed to resell that license to a new owner. This is how digital download services like Steam and Xbox Live Marketplace can legally prevent you from reselling digital copies of their titles.

How do the courts deal with the conflict between these EULAs and the consumer's legislatively granted first-sale rights? The case law regarding the subject is a bit unsettled, but the trend seems to be going in a decidedly consumer-unfriendly direction. "Assuming you actually agree to [the EULA], even if you didn't read it, courts tend to treat those contracts as binding," McSherry says. "There's a tension there — have you contractually waived your first sale right? — but unfortunately recent cases have not been really positive in that direction."

Of course, just because it's legal doesn't mean it's a good idea, for a variety of economic and consumer relations reasons. But if companies are going to be prevented from scaling back a used game's value, it will likely be because of public pressure, and not legal pressure.

"I think a company is free to design its games the way they want to design their games," McSherry says. "To me, it's less of a legal question and more of a question of business and public policy."

Climate Change and the Integrity of Science

2012-01-28T16:12:00.001-05:00

European Parliament Official In Charge Of ACTA Quits, And Denounces The 'Masquerade' Behind ACTA

2012-01-28T03:15:00.002-05:00

This is interesting. Kader Arif, the "rapporteur" for ACTA, has quit that role in disgust over the process behind getting the EU to sign onto ACTA. A rapporteur is a person "appointed by a deliberative body to investigate an issue." However, it appears his investigation of ACTA didn't make him very pleased:

I want to denounce in the strongest possible manner the entire process that led to the signature of this agreement: no inclusion of civil society organisations, a lack of transparency from the start of the negotiations, repeated postponing of the signature of the text without an explanation being ever given, exclusion of the EU Parliament's demands that were expressed on several occasions in our assembly.

As rapporteur of this text, I have faced never-before-seen manoeuvres from the right wing of this Parliament to impose a rushed calendar before public opinion could be alerted, thus depriving the Parliament of its right to expression and of the tools at its disposal to convey citizens' legitimate demands.”

Everyone knows the ACTA agreement is problematic, whether it is its impact on civil liberties, the way it makes Internet access providers liable, its consequences on generic drugs manufacturing, or how little protection it gives to our geographical indications.

This agreement might have major consequences on citizens' lives, and still, everything is being done to prevent the European Parliament from having its say in this matter. That is why today, as I release this report for which I was in charge, I want to send a strong signal and alert the public opinion about this unacceptable situation. I will not take part in this masquerade.

Pretty rare to find such direct honesty in political circles. That's quite a direct and clear condemnation of the entire process. In terms of process, it will be interesting to see if this has an impact. While the EU did sign on to ACTA today, it still needs to be ratified by the European Parliament (more on that in a little while). Having Arif quit makes a pretty big statement, and hopefully makes it easier for Parliament Members to speak out loudly against ACTA... Still, this is an uphill battle. The supporters of ACTA have been working to get ACTA approved for years. To them, this is basically a done deal.

Man who downloaded recipes on how to make explosive devices jailed

2012-01-27T21:57:00.000-05:00

A man who downloaded recipes on how to make explosive devices onto a pen drive has been jailed.

Asim Kauser, aged 25, of Bardon Close, Halliwell, Bolton, pleaded guilty to four offences under Section 58 of the Terrorism Act 2000 at an earlier hearing. The particulars are that Kauser was in possession of records of information of a kind likely to be useful to a person committing or preparing an act of terrorism.

He has today, 27 January 2012, been sentenced to two years and three months in prison at Manchester Crown Court, Crown Square. Kauser was arrested and charged following an operation by the North West Counter-Terrorism Unit.

Police first became involved when officers from Bolton were called to investigate a burglary that happened overnight between 1 and 2 June 2011 at Kauser's family home, in which the thieves stole a car.

Kauser's father gave police a USB stick which was thought to contain CCTV images of the burglary.

However, when it was examined it contained recipes on how to make explosive devices and poisons, anti-interrogation techniques and details on how to kill efficiently.

A further examination of the stick revealed a letter, addressed to an unknown recipient, in which the author - again anonymous but referring to himself as a 24-year-old man - seeks spiritual guidance and says he has prepared himself physically and financially for jihad.

Officers also recovered a list that contained prices in both pounds and rupees of a number of items, including an AK47 rifle, rounds of ammunition, a grenade launcher and other survival or combat material.

Forensic analysis of the pen drive revealed the material had been downloaded in the spring of 2010.

Explosive experts were consulted who confirmed the recipes on the stick were viable ways of making explosive devices.

Detective Chief Superintendent Tony Porter, head of the North West Counter-Terrorism Unit, said: "The materials we discovered on that pen drive were clear and viable instructions on how to make explosive devices.

"When you combine that with the letter and the 'shopping' list that was found in Kauser's bedroom which contained pricing details for guns, ammunition and other survival equipment it builds up a picture of his state of mind.

"This case has never been about proving an endgame and we may never know what his intentions were, but when you have significant evidence of how to make explosive devices and pricing lists for weapons, we had to act quickly.

"The North West Counter-Terrorism Unit has to act on any information or suggestion of terrorist activity - in situations like these there can be absolutely no delay.

"Throughout this investigation, we have worked with members of our community, who were understandably anxious to see this case resolved, to keep them informed and we would like to thank those people for their support.

"I also want to stress that this case is not about policing people's freedom to browse the Internet. The materials that were downloaded were not stumbled upon by chance - these had to be searched for and contained very dangerous information that could have led to an explosive device being built. That is why we had to take action.

"All forms of violent extremism present a threat to our communities and we all have a role to play in protecting them."

Why History Needs Software Piracy

2012-01-27T21:54:00.000-05:00

How copy protection and app stores could deny future generations their cultural legacy.
By Benj Edwards

Amid the debate surrounding controversial anti-piracy legislation such as SOPA and PIPA, our public discourse on piracy tends to focus on the present or the near future. When jobs and revenues are potentially at stake, we become understandably concerned about who is (or isn’t) harmed by piracy today.

I’m here to offer a different perspective, at least when it comes to software piracy. While the unauthorized duplication of software no doubt causes some financial losses in the short term, the picture looks a bit different if you take a step back. When viewed in a historical context, the benefits of software piracy far outweigh its short-term costs. If you care about the history of technology, in fact, you should be thankful that people copy software without permission.

It may seem counterintuitive, but piracy has actually saved more software than it has destroyed. Already, pirates have spared tens of thousands of programs from extinction, proving themselves the unintentional stewards of our digital culture.

Software pirates promote data survival through ubiquity and media independence. Like an ant that works as part of a larger system it doesn’t understand, the selfish action of each digital pirate, when taken in aggregate, has created a vast web of redundant data that ensures many digital works will live on.

Piracy’s preserving effect, while little known, is actually nothing new. Through the centuries, the tablets, scrolls, and books that people copied most often and distributed most widely survived to the present. Libraries everywhere would be devoid of Homer, Beowulf, and even The Bible without unauthorized duplication.

The main difference between then and now is that software decays in a matter of years rather than a matter of centuries, turning preservation through duplication into an illegal act. And that’s a serious problem: thousands of pieces of culturally important digital works are vanishing into thin air as we speak.

The Case of the Disappearing Software

The crux of the disappearing software problem, at present, lies with the stubborn impermanence of magnetic media. Floppy disks, which were once used as the medium du jour for personal computers, have a decidedly finite lifespan: estimates for the data retention abilities of a floppy range anywhere from one year to 30 years under optimal conditions.

A floppy stores data in the form of magnetic charges on a specially treated plastic disc. Over time, the charges representing data weaken to the point that floppy drives can’t read them anymore. At that point, the contents of the disk are effectively lost.

This becomes particularly troubling when we consider that publishers began releasing software on floppy disk over 30 years ago. Most of those disks are now unreadable, and the software stored on them has become garbled beyond repair. If you’ve been meaning to back up those old floppies in your attic, I have bad news: it’s probably too late.

To make matters worse, software publishers spent countless man-hours in the 1980s preventing us from archiving their work. To discourage piracy, they devised schemes to forever lock their software onto a single, authorized diskette. One popular copy protection method involved placing an intentionally corrupt block of data on a disk to choke up error-checking copy routines. It worked so well that it also prevented honest attempts to back-up legally purchased software.

If these copy protection schemes had been foolproof, as intended, and copyright law had been obeyed, most of the programs published on those fading disks would now be gone forever. Many cultural touchstones of a generation would have become extinct due to greed over media control.

It’s not just floppy disks that are under threat. Thousands of games published on ROM cartridges and as enormous arcade cabinets are now hard to find and can only run on electronic hardware that will not last forever. Publishers have re-released a handful of the most prominent games among them on newer platforms, but the large majority of legacy video games don’t get this treatment. Pirates liberate the data from these ROM chips and allow them to be played, through software emulation, on newer consoles and PCs.

Pirating also makes foreign game libraries easily available for historians to study. Some games only appeared on writable cartridges in Japan via download methods like the Nintendo Power flash cart system and the BS-X Satellaview. Those would be entirely out of the reach of Western historians today without previous efforts to back them up illegally.

For a sample slice of what’s at stake when it comes to vanishing software, let’s take a look at the video game industry. The Web’s largest computer and video game database, MobyGames, holds records of about 60,000 games at present. Roughly 23,000 of those titles were originally released on computer systems that used floppy disks or cassette tapes as their primary storage or distribution medium.

23,000 games! If game publishers and copyright law had their way, almost all of those games would be wiped from the face of the earth by media decay over the next 10 years. Many would already be lost.

For the past decade, collectors and archivists have been compiling vast collections of out-of-print software for vintage machines (think Apple II, Commodore 64, and the like) and trading them through file sharing services and on “abandonware” websites. Through this process, they’ve created an underground software library that, despite its relative newness, feels like the lost archives of an ancient digital civilization.

About Abandonware

Abandonware is a pseudolegal concept that posits the righteousness of distributing software that is no longer commercially sold or supported — that which seems “abandoned” by its owners. Despite this, if the software is copyrighted and permission to distribute software has not been expressly given by the owner, distributing it is still illegal.

As a journalist and historian, I rely on these collections of pirated software to do my job. I’d rather it not be that way, but there is no legal alternative (more on that in a moment).

The compilation of this underground library–a necessary resource for future historians–is a brave act of civil disobedience that needs to continue if we are to protect our digital heritage. As we’ll see, the greatest threats to software history lie not behind us, but directly ahead of us.

Why Preserve Software?

Before we go any further, let’s take a step back and consider why we should preserve software in the first place. Software often seems inconsequential because of its ephemeral nature. It’s a dynamic expression of electrons on a computer screen, and that doesn’t mean much, instinctively, to brains that evolved to recognize value in physical objects.

But software is also a powerful tool whose mastery says something profound about our civilization. If we look back through a museum, we can get a good idea about a certain society’s potential by examining its tools. If a civilization could build threshing machines, for example, we know that they could harvest and process wheat much faster than people 100 years earlier. That, in turn, might explain a known population boom.

Likewise, we can measure mankind’s recent potential by looking at his software tools. Future historians may ponder how people achieved a surreal vocal effect in music or created the CGI animated films of today. They may wonder at what point a certain tool allowed fantastic, photorealistic image manipulations that now dominate advertising. Without knowledge of and experimental access to various versions of Auto-Tune, Pixar RenderMan, and Adobe Photoshop, they’ll have a difficult time finding accurate answers to those questions.

Software is also entertainment. It is culture. Like books, music, and films before it, the art form expressed in software entertainment programs–usually games–has both reflected and influenced the cultural behavior of multiple generations around the globe.

Is there an American alive between the ages of 15 and 35 that doesn’t know who Mario is? (I’m sure you can find someone who has not heard of Mario, but he was locked in a basement from 1980 to 1999.)

Thanks to the work of preservationists that flout the law, future historians will be able to more fully consider Mario’s cultural impact and answer deeper, ancillary questions like “Why did people wear T-shirts with pixelated mushroom people on them?” and “What games, exactly, did Mario appear in and why?”

It’s possible that Nintendo will be around 200 years from now, but it is unlikely to provide all the answers. The company will only convey the history that is in their best commercial interest to show you (i.e. Super Mario Bros. 3, over and over). Historians will show you everything without restraint — even Hotel Mario, Mario Roulette, and I Am A Teacher: Super Mario Sweater. None of those games will survive 200 years without piracy, because Nintendo would rather see those embarrassingly low-quality titles rot away in a tomb sealed by copyright law.

We Have Everything To Lose

It would be nice if the problem of disappearing software was limited to the past, but there’s a disturbing parallel at work in the current software marketplace. App stores and other digital distribution methods–which often inextricably link purchased software to a unique licensee, sometimes on a unique machine–threaten to deprive us of even more software in the very near future.

Thanks to widespread adoption of aggressive digital rights management (DRM) and a single-source model of distribution, most digitally distributed software will vanish from the historical record when those stores shut down. And believe me, they will shut down some day. If this doesn’t scare you, then you need an allegorical history lesson. Here it is:

Imagine if a publisher of 500,000 different printed book titles suddenly ceased operation and magically rendered all sold copies of its books unreadable. Poof. The information contained in them simply vanished. It would represent an cultural catastrophe on the order of the burning of the Great Library of Alexandria in 48 B.C. In that fire, a majority of the Western world’s cultural history up to that point turned to ash.

Now take a look at the iTunes App Store, a 500,000 app repository of digital culture. It’s controlled by a single company, and when it closes some day (or it stops supporting older apps, like Apple already did with the classic iPod), legal access to those apps will vanish. Purchased apps locked on iDevices will meet their doom when those gadgets stop working, as they are prone to do. Even before then, older apps will fade away as developers decline to pay the $100 a year required to keep their wares listed in the store.

From a historical perspective, we can only hope that hackers and pirates have been quietly making archives of as much as they can grab from download services like the iTunes App Store, the PlayStation Store, the Wii Shop Channel, Xbox Live Arcade, and other online app stores.

And what about cloud software? If all of our software tools become centralized and run over the Internet, it will be hard to pirate them, which also means they won’t get preserved. That’s bad for history.

When paleoanthropologists wonder if a 13,000 year-old Clovis point can take down a Bison, they tie one to a spear and let it fly. If spear points had been automatically cloud updated over the course of their development, however, we would only know of the most recent iteration in the design process. Clovis points wouldn’t exist today, and we’d be wondering how ancient Native Americans managed to hunt game with uranium-tipped bullets.

With that in mind, think about this: What did Gmail’s interface look like just one year ago? How did Google Maps work before it added Street View? Lacking experimental access to older versions of cloud-based software tools, future historians will have to depend on screenshots and personal testimony to work out exactly what the tools were capable of at any time, if they still exist.

But if future historians retain access to old versions of non-cloud software, they will be able use the tools, as they would with a Clovis point, to experimentally duplicate the activities of people in the past. For example, they could run the AtariWriter word processing program on an Atari 800 emulator to reproduce a document from the 1980s in a way that would explain its format.

A complete reliance on cloud gaming (think OnLive) is also a very bad idea. Looking to OnLive to preserve game software would be like expecting your local movie theater to preserve film history. It’ll only show what is commercially viable to show at the time, and they discard the rest. That is how cloud gaming will work as well.

The new Great Library is already burning, and we are only just beginning to smell the smoke.

When Corporations Own History, They Change It

The DRM found in digital app stores today poses a significant threat to our future understanding of history. Sure, the companies that create this software own the rights to these products now, but once a work becomes consumed and embedded into mass culture, it belongs to the ages. It assumes a role larger than that of a mere commercial product, and copies of the work should be protected and preserved as cultural treasures.

It’s hard to protect and preserve that which is liable to change or disappear at any time. If VHS tapes worked like app stores, George Lucas could force all of us to upgrade our purchased Star Wars films to the Special Edition versions (to maintain compatibility with LucasOS, of course), overwriting the old ones in the process. Heck, one day he could decide he doesn’t like the movies at all and replace them with copies of Willow. It would be within his legal rights, but it would also be cultural robbery.

It bugs me that iOS software today updates at a galloping pace that deletes previous versions unless you’ve taken pains to archive them. It is convenient and wonderful functionality in many ways, but the practice also rewrites history with every download. What if Photoshop had been updated that way throughout the 1990s? Would anyone have a copy of the first version that could work with layers? Such a historically important piece of software would be lost. Similarly, if we move to a completely controlled, single-source, automatic update scheme for all PC applications–it’s almost here with Windows 8, by the way–we will be destroying digital artifacts with a fervor heretofore unseen.

By accepting restrictive DRM into our lives, we are giving not only software publishers, but all media publishers the power to erase, control, or manipulate digital cultural history if they choose. That is why DRM feels fundamentally wrong from a humanistic standpoint: it conspires, in conjunction with time, to deprive humanity of its rightfully earned cultural artifacts.

To be sure, every creator of software should be rewarded appropriately with exclusive rights of reproduction for a certain period of time, as they are now, but only in a soft legal sense, not with a virtual lock and key that stymies the preservation of history.

Let’s not repeat what happened 2000 years ago in Alexandria. The only scrolls that survived the burning of the Great Library were those that had been copied and distributed, likely without the permission of their authors. (Unfortunately, library officials strictly limited library access to prevent this, so very few texts escaped destruction.) If we don’t open the doors to the legal preservation of all software, civilizations thousands of years from now will only possess copies of programs that pirates illegally duplicated and distributed while the works were still officially available.

The cultural impact of software easily equals that of any other creative work. It is time to legitimately preserve this digital art form in libraries alongside books and films. Setting up such a library, however, is a very difficult proposition.

The Plight of the Digital Librarian

If you wanted to study the history of our culture up to the present, you’d probably turn to a library. There you can find comprehensive collections of analog data to study for free. If you want to study software in the same way, you’re out of luck: operating a practical, comprehensive software library is currently illegal in the United States.

Don’t get me wrong: it is possible to create a legal software library, but its implementation would make it nearly useless. The best a library can hope to do, within its legal limits, is to stock physical copies of officially duplicated software media on physical shelves. That means that all the problems with decaying and obsolete media come along with it. There’d be plenty of bulk and very little guarantee that you’d be able to access what is sitting in the stacks.

A more practical approach for a software library would be to liberate the data from fixed media and store it in arrays of redundant hard disks. Librarians could upgrade the arrays over time to avoid obsolescence, and the software could be painlessly transferred over a network to be run on emulators (which would simulate the original software platforms) for historical study.

Unfortunately, the practical approach doesn’t work because it’s currently illegal under US copyright law to copy software — a necessary part of freeing it from its original media — and then share it with the public without the publisher’s permission. (The law provides for legal backup copies, but you can’t share them with other people.) Moreover, it’s illegal under the Digital Millennium Copyright Act (DMCA) to circumvent copy protection schemes to actually make those copies in the first place.

Right now, there exist libraries that store floppy disks on their shelves as if they were books. These organizations make the mistake of assuming that, like books, the data on computer disks will last indefinitely if carefully shielded from the elements. But there is nothing they can do to ultimately stop the loss of data. The data needs to be copied onto a new medium. At some point, the law needs to be broken — or changed.

Copyright’s Obsolete Legal Assumption

Current U.S. copyright laws have good intentions, but they ultimately jeopardize the survival of digital property because they do not take into account the rapid pace of digital media decay and obsolescence.

Our body of copyright law makes a 19th-century-style legal assumption that the works in question will stay fixed in a medium safely until the works become public domain, when they can then be copied freely. Think of paper books, for example, which can retain data for thousands of years under optimal conditions.

In the case of digital data, many programs will vanish from the face of the earth decades before the requisite protection period expires (the life of the author plus 70 years in the U.S.). Media decay and obsolescence will claim that software long before any libraries can make legal, useful backups.

A potential solution would be to limit copyright terms on software to a more reasonable period of time — say, 20 years maximum. Then archivists would have a far greater chance of properly retrieving and storing the old software before it deteriorated into oblivion.

It should also be permanently legal for librarians to circumvent copy protection schemes to archive software. Currently, limited exemptions to the DMCA provide temporary DRM-breaking provisions under very narrow circumstances, but that is not enough.

As an alternative, a new law could require publishers that seek copyright protection to deposit DRM-free versions of software to the U.S. Library of Congress for media-independent archival. The software could later be digitally “checked out” on a limited basis by patrons doing research. If necessary, these digital library materials could become available only after a period of time, say five years, to further protect commercial interests

Don’t Let Software Disappear

We live in a civilization dominated by commerce and those who benefit from it, so we instinctively want to protect those who fairly engage in business. There are those among us who, in pursuit of that goal, would like to assault piracy with heavy-handed legislation. But piracy, which is endemic to and inseparable from digital distribution, can never be fully controlled without depriving freedom. Legislation that attempts to do so will only drive the practice further underground while punishing those who don’t even engage in it by crippling the technology that allows software to exist in the first place.

The Four Forces of Software Decay

There are four main techno-cultural forces pushing software toward extinction.

Force 1: Physical Decay

No form of digital media holds data forever. Every computer data storage medium physically deteriorates over time, losing data in the process.

Force 2: Medium Obsolescence

As technical innovations continue, every storage format will become obsolete and rarely used at some point, making retrieving the data in the future difficult.

Force 3: Copy Deterrence

For economic reasons, software publishers have historically tried to deter users from copying the publisher’s software without permission. These methods prevent the legitimate archival of software.

Force 4: Economic Obsolescence

Every software product has a limited market lifespan, which is the result of rapid technological progress. This means that software will only be duplicated and distributed commercially for a short period of time.

At the moment, you can obtain just about any entertainment work or software program for free if you try hard enough. Despite that, millions of people still pay real money to obtain legal copies of software, films, and music, in the process making those industries bigger and more profitable than ever.

The fact that people still buy access to digital media in large numbers means that piracy is simply not the problem they think it is. In fact, piracy is itself the solution to another problem: the problem of over-protected intellectual property. It would be wonderful if those companies utilizing strict DRM and pushing for aggressive anti-piracy legislation saw the need to be a little less profiteering for the greater historical good, but since that is rarely the objective of the free market, don’t hold your breath.

It is up to us, as a generation, to preserve our cultural history. We must also push for reforms in copyright law that allow software to take its rightful place in historical archives without the need to rely upon the work of pirates.

If you love software, buy it, use it, and reward the people who make it. I do it all the time, and I support the industry’s right to make money from its products. But don’t be afraid to stand up for your cultural rights. If you see strict DRM and copy protection that threatens the preservation of history, fight it: copy the work, keep it safe, and eventually share it so it never disappears.

Some people may think ill of your archival efforts now, but they’re on the wrong side of history: no one living 500 years from now will judge your infringing deeds harshly when they can load up an ancient program and see it for themselves.

It’s time to end the failed war on drugs

2012-01-27T21:48:00.000-05:00

By Richard Branson

Just as prohibition of alcohol failed in the United States in the 1920s, the war on drugs has failed globally. Over the past 50 years, more than $1 trillion has been spent fighting this battle, and all we have to show for it is increased drug use, overflowing jails, billions of pounds and dollars of taxpayers’ money wasted, and thriving crime syndicates. It is time for a new approach.

Too many of our leaders worldwide are ignoring policy reforms that could rapidly reduce violence and organised crime, cut down on theft, improve public health and reduce the use of illicit drugs. They are failing to act because the reforms that are needed centre on decriminalising drug use and treating it as a health problem. They are scared to take a stand that might seem “soft”.

But exploring ways to decriminalise drugs is anything but soft. It would free up crime-fighting resources to go after violent organised crime, and get more people the help they need to get off drugs. It’s time to get tough on misguided policies and end the war on drugs.

I was fortunate to be part of the Global Commission for Drug Policy, along with the former US Secretary of State George Shultz, former UN Secretary-General Kofi Annan, President Cardoso of Brazil and the likes of the former UN High Commissioner for Human Rights, Louise Arbor, and the former chairman of President Obama’s Economic Recovery Advisory Board, Paul Volcker. We studied international drug policy over the past 50 years, and found that it has totally failed to stop the growth and diversification of the drug trade. Between 1998 and 2008, opiate use increased by more than 34 per cent, even as prison populations swelled and profits for drug traffickers soared.

As these grim trends show, the two strategies at the core of drug control policy have been ineffective. First, prohibition and enforcement efforts have failed to dent the production and distribution of drugs in any part of the world. Second, the threat of arrest and punishment has had no significant deterrent effect on drug use.

Unless this issue is tackled now, countless individuals and families will continue to suffer, no matter how much money is spent. We need a debate on how policy can cut consumption and reduce harm, rather than inflammatory scaremongering. It is not about supporting drug use; it is about solving a crisis.

Drugs are dangerous and ruin lives. They need to be regulated. But we should work to reduce the crime, health and social problems associated with drug markets in whatever way is most effective. Broad criminalisation should end; new policy options should be explored and evaluated; drug users in need should get treatment; young people should be dissuaded from drug use via education; and violent criminals should be the target of law enforcement. We should stop ineffective initiatives like arresting and punishing citizens who have addiction problems.

The next step is simple: countries should be encouraged to experiment with new policies. We have models to follow. In Switzerland, the authorities employed a host of harm-reduction therapies, and successfully disrupted the criminal drug market. In Portugal, decriminalisation for users of all drugs 10 years ago led to a significant reduction in heroin use and decreased levels of property crime, HIV infection and violence. Replacing incarceration with therapy also helped create safer communities and saved the country money – since prison is far more expensive than treatment. Following examples such as these and embracing a regulated drugs market that is tightly controlled and complemented by treatment – not incarceration – for those with drug problems will cost taxpayers a lot less.

Even with these examples, we do not yet know what will work best. New policies should be evaluated according to the scientific evidence. But we can say now that these policies should focus on the rights of citizens and on protecting public health. Drug policy should be a comprehensive issue for families, schools, civil society and health care providers, not just law enforcement.

To evaluate such policies, we should stop measuring their success according to such indicators as numbers of arrests, prosecutions and drug seizures, which turn out to have little impact on levels of drug use or crime. We should instead measure the outcomes in the same way that a business would measure the results of a new ad campaign. That means studying things like the number of victims of drug-related violence and intimidation, levels of corruption connected to the drug market, the amount of crime connected to drug use, and the prevalence of dependence, drug-related mortality and HIV infection.

Many political leaders and public figures acknowledge privately that repressive strategies have only made the drug problem worse. It took 14 years for America’s leaders to repeal Prohibition. After 50 years of the failed drug war, it is time for today’s leaders to find the courage to speak out.

For all the successes I’ve had in business, I’ve also learnt to accept when things go wrong, work out why, and try to find a better way. The war on drugs is a failed enterprise. We need to have the courage to learn the lessons and move on.

What Does Twitter’s Country-by-Country Takedown System Mean for Freedom of Expression?

2012-01-27T21:38:00.000-05:00

Yesterday, Twitter announced in a blog post that it was launching a system that would allow the company to take down content on a country-by-country basis, as opposed to taking it down across the Twitter system. The Internet immediately exploded with allegations of censorship, conspiracy theories about Twitter’s Saudi investors and automated content filtering, and calls for a January 28 protest. One thing is clear: there is widespread confusion over Twitter's new policy and what its implications are for freedom of expression all over the world.

Let’s get one thing out of the way: Twitter already takes down some tweets and has done so for years. All of the other commercial platforms that we're aware of remove content, at a minimum, in response to valid court orders. Twitter removes some tweets because they are deemed to be abuse or spam, while others are removed in compliance with court orders or DMCA notifications. Until now, when Twitter has taken down content, it has had to do so globally. So for example, if Twitter had received a court order to take down a tweet that is defamatory to Ataturk--which is illegal under Turkish law--the only way it could comply would be to take it down for everybody. Now Twitter has the capability to take down the tweet for people with IP addresses that indicate that they are in Turkey and leave it up everywhere else. Right now, we can expect Twitter to comply with court orders from countries where they have offices and employees, a list that includes the United Kingdom, Ireland, Japan, and soon Germany.

Twitter's increasing need to remove content comes as a byproduct of its growth into new countries, with different laws that they must follow or risk that their local employees will be arrested or held in contempt, or similar sanctions. By opening offices and moving employees into other countries, Twitter increases the risks to its commitment to freedom of expression. Like all companies (and all people) Twitter is bound by the laws of the countries in which it operates, which results both in more laws to comply with and also laws that inevitably contradict one another. Twitter could have reduced its need to be the instrument of government censorship by keeping its assets and personnel within the borders of the United States, where legal protections exist like CDA 230 and the DMCA safe harbors (which do require takedowns but also give a path, albeit a lousy one, for republication).

Twitter is trying to mitigate these problems by only taking down access to content for people coming from IP addresses the country seeking to censor that content. That's good. For now, the overall effect is less censorship rather than more censorship, since they used to take things down for all users. But people have voiced concerns that "if you build it, they will come,"--if you build a tool for state-by-state censorship, states will start to use it. We should remain vigilant against this outcome.

In the meantime, Twitter is taking two additional steps to ensure that users know that the censorship has happened. First, they are giving users notice when they seek that content. Second, they are sending the notices they receive to the Chilling Effects Project, which publishes the orders, creating an archive. Note: EFF is one of the partners in the Chilling Effects project. So far, of very big websites only Google and Wikipedia are this transparent about what they take down or block and why. When Facebook takes down a post, there is no public accountability at all. Through Chilling Effects, users can track exactly what kinds of content Twitter is being asked to censor or take down and how that happened.

So what should Twitter users do? Keep Twitter honest. First, pay attention to the notices that Twitter sends and to the archive being created on Chilling Effects. If Twitter starts honoring court orders from India to take down tweets that are offensive to the Hindu gods, or tweets that criticize the king in Thailand, we want to know immediately. Furthermore, transparency projects such as Chilling Effects allow activists to track censorship all over the world, which is the first step to putting pressure on countries to stand up for freedom of expression and put a stop to government censorship.

What else? Circumvent censorship. Twitter has not yet blocked a tweet using this new system, but when it does, that tweet will not simply disappear—there will be a message informing you that content has been blocked due to your geographical location. Fortunately, your geographical location is easy to change on the Internet. You can use a proxy or a Tor exit node located in another country. Read Write Web also suggests that you can circumvent per-country censorship by simply changing the country listed in your profile.

Australia - ISP data retention still an issue, Ludlam warns

2012-01-26T14:09:00.000-05:00

Greens Senator Scott Ludlam has warned that a secretive proposal — known as ‘data retention’ — by the Attorney-General’s Department to force internet service providers to store a wealth of information pertaining to Australians’ emails and telephone calls is still an issue, with the public needing to remain vigilant on how the Government handles Internet surveillance.

The proposal — known popularly as ‘OzLog’ — first came to light in June 2010, when AGD confirmed it had been examining the European Directive on Data Retention (PDF) to consider whether it would be beneficial for Australia to adopt a similar regime. The directive requires telcos to record data such as the source, destination and timing of all emails and telephone calls – even including internet telephony.

In August the Attorney-General’s Department confirmed to iTNews that it was still considering the introduction of a data retention regime separately from the sort of watered down data ‘preservation’ rules being introduced in new cybercrime legislation. Delimiter has this week filed a Freedom of Information request with the Attorney-General’s Department in an effort to ascertain the precise current state of the data retention proposal.

Speaking at Electronic Frontiers Australia’s ‘War on the Internet’ event on Saturday in Melbourne (full video available online here), Ludlam, who is the Communications Spokesperson for the Greens, said much of the thinking around the data retention proposal had been integrated into new cybercrime legislation introduced in mid-2011.

Ludlam said the proposal had been narrowed down to a degree to which most people would find ‘reasonable’, in that law enforcement agencies could, for example, request ISPs to keep all available data on people suspected of committing major crimes such as terrorism — a technique he described as “hold that person’s everything, until we tell you not to any more”.

However, the Greens Senator warned, that cybercrime legislation could “mutate” into something completely different. “Maybe let’s trap all the data of these categories of people,” he said, appearing to refer to the political activist community, many members of whom had gathered at the Melbourne event. “Or these postcodes of people.”

“We know that that agenda is there,” Ludlam said, referring to the potential to “broaden out” the applications of the data retention system. “And it’s going to take sustained work to prevent that from happening. Once these systems and structures are in place, they are abused, almost by definition.”

Ludlam highlighted a Sydney Morning Herald article published several weeks ago which revealed that the Federal Resources and Energy Minister, Martin Ferguson, had secretly pushed for increased surveillance by police of environmental activists who had been protesting peacefully at coal-fired power stations and coal export facilities, with some of the work being carried out by a private contractor, the National Open Source Intelligence Centre (NOSIC).

The Greens Senator said his party would be filing freedom of information requests with the Government to find out why it thought it was appropriate, “at taxpayer’s expense, to surveil” activists who were legitimately drumming up interest in the environment. Ludlam said he presumed the Government was also tracking animal rights and anti-nuclear campaigners as well.

Hacker luminary Jacob Appelbaum, who also spoke at the event, said data retention weakened the whole of society as such systems would eventually be compromised by criminals both in Australia and internationally. With data retention, authorities could “retroactively police the population,” he acknowledged.

However, once a database like that existed, he said, that database would be stolen, leading to a point where criminals would find it very easy to commit crimes because they would be able to generate a precise pattern of people’s personal movements from the data — for example, “knowing where a car is regularly parked so you can steal it”.

Appelbaum encouraged Australian telecommunications engineers to find the points in their networks where law enforcement officials were able to connect to conduct surveillance such as wire tapping and disclose those points to the public. “Find those, and expose them. Tell journalists. Tell MPs like this guy over here,” he said, pointing at Ludlam. Ludlam highlighted the fact that it was only through the efforts of such public spirited individuals — which leaked the proposal to the media — that the data retention proposal had come to light in the first place.

Ludlam also warned of the potential for a reshuffle of cybercrime resources within the Federal Government to lead to dangerous outcomes in the area. In late December, a new cybersecurity unit was quietly formed within the Prime Minister’s Department, although the Government has not yet clarified what its responsibilities will be.

“We have a major restructure that just occurred in the commonwealth — a super-portfolio, drawn together in the Prime Minister’s office from fragments in Defence, Foreign Affairs, Communications, some presumably copyright stuff and commercial stuff that has all come together,” Ludlam said. “… really most of that sat in the former Attorney-General’s Office … [it was] picked up and moved to the PM’s office. And that’s important. We are getting a cyber-safety strategy at some point this year. That’s going to be very important to watchdog to watch how they’re thinking and what they’re doing, because all kinds of sneaky and nasty agendas are going to creep into that thing.”

Hawaii may keep track of all Web sites visited

2012-01-26T14:07:00.000-05:00

by Declan McCullagh

Hawaii's legislature is weighing an unprecedented proposal to curb the privacy of Aloha State residents: requiring Internet providers to keep track of every Web site their customers visit.

Its House of Representatives has scheduled a hearing this morning on a new bill (PDF) requiring the creation of virtual dossiers on state residents. The measure, H.B. 2288, says "Internet destination history information" and "subscriber's information" such as name and address must be saved for two years.

H.B. 2288, which was introduced Friday, says the dossiers must include a list of Internet Protocol addresses and domain names visited. Democratic Rep. John Mizuno of Oahu is the lead sponsor; Mizuno also introduced H.B. 2287, a computer crime bill, at the same time last week.

Last summer, U.S. Rep. Lamar Smith (R-Texas) managed to persuade a divided committee in the U.S. House of Representatives to approve his data retention proposal, which doesn't go nearly as far as Hawaii's. (Smith, currently Hollywood's favorite Republican, has become better known as the author of the controversial Stop Online Piracy Act, or SOPA.)

Democrat Jill Tokuda, the Hawaii Senate's majority whip, who introduced a companion bill, S.B. 2530, in the Senate, told CNET that her legislation was intended to address concerns raised by Rep. Kymberly Pine, the first Republican elected to her Oahu district since statehood and the House minority floor leader.

"I was asked to introduce the Senate companions on these Internet security related bills by Representative Kymberly Marcos Pine after her own personal experience in this area," Tokuda said. "I would defer to her on the origins of these bills as she has done the research and outreach, and been the main champion of this effort."

Pine, who did not immediately respond to queries, has been targeted by a disgruntled Web designer, Eric Ryan, who launched KymPineIsACrook.com and claims she owes him money, according to an article last summer in the Hawaii Reporter. Her e-mail account was also reportedly hacked around the same time. The article said Pine would advocate for "tougher cyber laws at the Hawaii State Capitol" as a result.

"We must do everything we can to protect the people of Hawaii from these attacks and give prosecutors the tools to ensure justice is served for victims," Pine said at the time.

Whatever its sponsors' motivations, the bill isn't exactly being welcomed by Hawaiian Internet companies.

"This bill represents a radical violation of privacy and opens the door to rampant Fourth Amendment violations," says Daniel Leuck, chief executive of Honolulu-based software design boutique Ikayzo, who submitted testimony opposing the bill. He adds: "Even forcing telephone companies to record everyone's conversations, which is unthinkable, would be less of an intrusion."

Mizuno's proposal currently specifies no privacy protections, such as placing restrictions on what Internet providers can do with this information (like selling user profiles to advertisers) or requiring that police obtain a court order before perusing the virtual dossiers of Hawaiian citizens. Also absent are security requirements such as mandating the use of encryption.

Because the wording is so broad and applies to any company that "provides access to the Internet," Mizuno's legislation could sweep in far more than AT&T, Verizon, and Hawaii's local Internet providers. It could also impose sweeping new requirements on coffee shops, bookstores, and hotels frequented by the over 6 million tourists who visit the islands each year.

"H.B. 2288 raises all of the traditional concerns associated with data retention, and then some," Kate Dean, head of the U.S. Internet Service Provider Association in Washington, D.C., which counts Verizon and AT&T as members, told CNET. "And this may be the broadest mandate we've seen."

Even the Justice Department has only lobbied the U.S. Congress to record Internet Protocol addresses assigned to individuals--users' origin IP address, in other words. It hasn't publicly demanded that companies record the destination IP addresses as well.

In Washington, D.C., the fight over data retention requirements has been simmering since the Justice Department pushed the topic in 2005, a development that was first reported by CNET. Proposals publicly surfaced in the U.S. Congress the following year, and President Bush's attorney general, Alberto Gonzales said it's an issue that "must be addressed." So, eventually, did FBI director Robert Mueller.

Insane English copyright ruling creates ownership in the idea of a photo's composition

2012-01-26T03:00:00.002-05:00

By Cory Doctorow

In a bizarre ruling, an English court has ruled that in favor of a commercial poster company that argued that a photo that showed a similar (but different) scene taken by a different person in a different place nevertheless infringed the copyright of a poster. What the judge ruled was that photographing a scene that is "substantially similar" to a scene someone else has already photographed infringes the first shooter's copyright.

It's impossible to understand how this will play out in real life. If a Reuters and an AP photographer are standing next to each other shooting the Prime Minister as he walks out of a summit with the US President, their photos will be nearly identical. Will the slightly faster shutter on the AP shooter's camera give him the exclusive right to publish a photo of the scene from the press-scrum?

The judge here ruled that the idea of the image was the copyright, not the image itself. Ideas have always been exempt from copyright, because courts and lawmakers have recognized the danger of awarding ownership over ideas. Indeed, the "idea/expression split" is pretty much the first thing you learn in any copyright class.

Amateur Photographer quotes "photographic copyright expert Charles Swan" who warns, "The Temple Island case is likely to herald more claims of this kind."

Yeah, no shit. This creates a situation where anyone who owns a large library of photos -- a stock photography outfit -- can go through its catalog and start suing anyone with deep pockets: "We own the copyright to 'two guys drinking beer with the bottoms of the mugs aimed skyward!'" It's an apocalyptically bad ruling, and an utter disaster in the making.

Swan warned: 'The Temple Island case is likely to herald more claims of this kind. The judgement should be studied by anyone imitating an existing photograph or commissioning a photograph based on a similar photograph.

'“Inspiration' and “reference” are fine in themselves, but there is a line between copying ideas and copying the original expression of ideas which is often a difficult one to draw.'
Though, in the past, the cost of such court actions has made them 'uneconomic to pursue' this is all about to change, added Swan. 'The UK government has accepted a recommendation in the Hargreaves Report that the Patents County Court… should operate a small claims procedure for intellectual property claims under £5,000.'

Europe proposes a "right to be forgotten"

2012-01-25T23:53:00.000-05:00

By Peter Bright

European Union Justice Commissioner Viviane Reding has proposed a sweeping reform of the EU's data protection rules, claiming that the proposed rules will both cost less for governments and corporations to administer and simultaneously strengthen online privacy rights.

The 1995 Data Protection Directive already gives EU citizens certain rights over their data. Organizations can process data only with consent, and only to the extent that they need to fulfil some legitimate purpose. They are also obliged to keep data up-to-date, and retain personally identifiable data for no longer than is necessary to perform the task that necessitated collection of the data in the first place. They must ensure that data is kept secure, and whenever processing of personal data is about to occur, they must notify the relevant national data protection agency.

The new proposals go further than the 1995 directive, especially in regard to the control they give citizens over their personal information. Chief among the new proposals is a "right to be forgotten" that will allow people to demand that organizations that hold their data delete that data, as long as there is no legitimate grounds to hold it.

It's not 1995 anymore

The 1995 Directive was written in a largely pre-Internet era; back then, fewer than one percent of Europeans were Internet users. The proposed directive includes new requirements designed for the Internet age: EU citizens must be able to both access their data and transfer it between service providers, something that the commission argues will increase competition. Citizens will also have to give their explicit permission before companies can process their data; assumptions of permission won't be permitted, and systems will have to be private by default.

These changes are motivated in particular by the enormous quantities of personal information that social networking sites collect, and the practical difficulties that users of these services have in effectively removing that information. Reding says that the new rules "will help build trust in online services because people will be better informed about their rights and in more control of their information."

Where do the claimed savings come from? EU member states currently comply with the 1995 Directive, but each of the 27 states has interpreted and applied these rules differently. The European Commission argues that this incurs unnecessary administrative burdens on all those involved with handling data. The new mandate would create a single set of rules consistent across the entire EU, with projected savings for businesses of around €2.3 billion (US$2.98 billion) per year.

With rules streamlined throughout the trading bloc, companies would in turn only have to deal with the data protection authorities in their home country, rather than in every state in which they trade.

The new rules would also reduce the routine data protection notifications that businesses must currently send to national data protection authorities, allowing further savings of €130 million (US$169 million). However, organizations that handle data will have greater obligations in the event of data breaches: they will have to notify data protection authorities as soon as possible, preferably within 24 hours.

The rules will also apply to companies that process data abroad, if those companies serve the EU market and EU citizens.

Non-compliance will be punishable by the national data protection authorities, and they will be able to apply penalties of up to €1 million (US$1.3 million) or two percent of global annual turnover.

The proposal will undergo discussion in the European Parliament. Once the rules are adopted, they will take effect within two years.

A mixed response

Industry responses to the proposals have been varied. While the harmonization and reduction of routine notifications is welcomed, some have rubbished Reding's claim that the new directive will reduce costs. For example, the Business Software Alliance's European government affairs director, Thomas Boué said, "The Commission's proposal today errs too far in the direction of imposing prescriptive mandates for how enterprises must collect, store, and manage information."

Supporters of the new proposals argue that the new directive will force companies to do things that they should already be doing. Christian Toon, head of information security at document management firm Iron Mountain, says, "Many businesses of all sizes are falling short of what is required to manage information responsibly. [...] Regardless of turnover, sector or country of operation, making sure that employee and customer information is protected should be common practice, not a reaction to new legislation."

Indeed, many of the provisions of the new directive have similar counterparts in the existing directive, and others are features of national law of some, but not all, EU member states. For example, current law gives citizens the right to have inaccurate data about them corrected. In some countries, such as the UK, this extends to a right to have that inaccurate data deleted outright. In others, such as Belgium, Germany, and Sweden, it does not. The new rules would make that right to delete universal, and would make it apply even for accurate data that is no longer necessary.

This is the so-called "right to be forgotten". The proposal does not create a right to be thrown down the memory hole or rewrite the past; news reports and similar material would be a legitimate reason to retain personal information, and this would override a demand to have data deleted. But sites like Facebook—which has had difficulties with the concept of deletion—and Google would likely be required to purge any such personal data should someone demand that they do so.

A strict "opt-in" requirement for the use of personal data could make advertising-funded services that rely on that personal data to properly target advertisements difficult to operate. The requirement to report breaches in 24 hours might also be difficult to fulfil, since it can take much longer for a breach to even be detected.

The new rules would create an interesting predicament for a company like Google. The search giant has just announced its new privacy policy that enables it to collect and aggregate data from almost all Google services, with no provision to opt out or restrict the processing the company performs to private data. This is the opposite of the "private by default" policy that the proposed rules require, and the only way that Google users will attain that privacy is by not creating or using a Google account.

When asked about the impact of the new rules, a Google spokesperson told Ars: "We support simplifying privacy rules in Europe to both protect consumers online and stimulate economic growth. It is possible to have simple rules that do both. We look forward to debating the proposals over the coming months."

But still, this is not a fundamental shift in the demands placed on data-holding organizations. They must already be able to identify personal data, they must already store it securely, and they must already be able to provide it on-demand. Doing these things requires that systems are designed appropriately, and this can certainly incur costs—but they are costs that should already exist today.

Disappointing Ruling in Compelled Laptop Decryption Case

2012-01-24T23:54:00.002-05:00

A federal district court in Colorado has handed down an unfortunate early ruling (pdf) in a case in which the government is attempting to force a criminal defendant to decrypt the contents of a laptop.

In United States v. Fricosu, the government seized several computers from the home of a woman charged with mortgage fraud, including a laptop containing encrypted information. Prosecutors asked the court (pdf) to force the woman to either type an encryption passphrase into the laptop to decrypt the information or turn over a decrypted version of the data, relying heavily on the fact that the government recorded a conversation between Fricosu and her ex-husband in which the government says she admitted that the laptop was hers and she knew the password. EFF filed an amicus brief (pdf) in July, arguing she had a Fifth Amendment privilege against self-incrimination that prevented the government from compelling her to disclose the data.

The Fifth Amendment protects a person from being forced to be a witness against herself in a criminal case, a right often called the privilege against self-incrimination. The privilege doesn't prevent the government from gathering evidence from a person, but rather protects a person from being forced to make communications that would reveal the contents of her mind. The Supreme Court has held that it also applies to actions that communicate something of value—for example, producing records that would confirm the existence or authenticity of certain information, or the fact that a particular person had control over that data.

Regardless, the government can overcome the privilege by offering immunity that matches the scope of the protected right, since any information revealed after that wouldn't be incriminating. The government can also bypass the privilege if it already knows about existence, location and possession of the evidence it seeks, such that forcing a person to turn over that information won't tell the government anything more than it already knows. The government claimed that it had defeated Fricosu's privilege in both of these ways.

In the order issued yesterday, the court dodged the question of whether requiring Fricosu to type a passphrase into the laptop would violate the Fifth Amendment. Instead, it ordered Fricosu to turn over a decrypted version of the information on the computer. While the court didn't hold that Fricosu has a valid Fifth Amendment privilege not to reveal that data, it seemed to implicitly recognize that possibiity. The court both points out that the government offered Fricosu immunity for the act of production and forbids the government from using the act of production against her. We think Fricosu not only has a valid privilege against self-incrimination, but that the immunity offered by the government isn't broad enough to invalidate it. Under Supreme Court precedent, the government can't use the act of production or any evidence it learns as a result of that act against Fricosu.

The court then found that the Fifth Amendment "is not implicated" by requiring Fricosu to turn over the decrypted contents of the laptop, since the government independently learned facts suggesting that Fricosu had possession and control over the computer. Furthermore, according to the court, "there is little question here but that the government knows of the existence and location of the computer's files. The fact that it does not know the specific content of any specific documents is not a barrier to production." We disagree with this conclusion, too. Neither the government nor the court can say what files the government expects to find on the laptop, so there is testimonial value in revealing the existence, authenticity and control over that specific data. If Fricosu decrypts the data, the government could learn a great deal it didn't know before.

In sum, we think the court got it wrong. Regardless, the result is a very specific to the facts of this case and is unlikely to have far-reaching consequences, even if it stands.

Professor Orin Kerr has more thoughts about this case here.

Supreme Court holds warrantless GPS tracking unconstitutional

2012-01-24T23:33:00.002-05:00

By Timothy B. Lee

All nine justices of the Supreme Court ruled on Monday that police officers violated the Fourth Amendment rule against unreasonable search and seizure when they attached a GPS device to a suspect's car and tracked it for 28 days without a warrant. But the court was split down the middle on the reasoning. Four justices focused on the physical trespass that occurred when the police attached the device, four focused on the violation of the suspect's "reasonable expectation of privacy," and the final justice, Sonia Sotomayor, endorsed both theories.

The case involved a suspected drug dealer. The feds got a warrant to track his car with a GPS device and then "installed a GPS tracking device on the undercarriage of the Jeep while it was parked in a public parking lot." But agents installed it a day after the warrant had expired and in a location not authorized by the warrant—making the surveillance warrantless. (The feds also had to access the Jeep again a couple weeks later in order to change the GPS tracker's battery "when the vehicle was parked in a different public lot in Maryland.")

At trial, the GPS data was used to link the defendant to an alleged drug stash house that "contained $850,000 in cash, 97 kilograms of cocaine, and 1 kilogram of cocaine base." The defendant was sentenced to life in prison. The Supreme Court considered the question of whether the GPS tracking had been conducted legally.
Two theories

While the result was unanimous, the reasoning was not. A five-judge majority led by Justice Scalia, and including most of the court's conservatives, focused on the physical trespass involved in attaching the device to the car. "The Government physically occupied private property for the purpose of obtaining information," Scalia wrote. "We have no doubt that such a physical intrusion would have been considered a 'search' within the meaning of the Fourth Amendment when it was adopted."

The focus on physical trespass is significant because it suggests that GPS surveillance by other means—such as by obtaining data from the GPS device already included in many of our cell phones—would not violate the Fourth Amendment.

Three of the court's liberals signed a concurrence by Justice Alito, a conservative, that would have taken a stronger pro-privacy stance. Alito argued that extended warrantless tracking itself violates the Fourth Amendment regardless of whether the government committed a trespass to accomplish it.

Alito focused on the famous case of Katz v. United States that established the "reasonable expectation of privacy" test for violations of the Fourth Amendment. He argued that the trespass here was of little consequence to Fourth Amendment analysis, and that what really matters is that the defendant had a reasonable expectations that the details of his movements over a 28-day period would be private.

Scalia responded to this critique in his opinion. "Unlike the concurrence, which would make Katz the exclusive test, we do not make trespass the exclusive test," he said. "Situations involving merely the transmission of electronic signals without trespass would remain subject to Katz analysis."

Of course, because Scalia chose to rule on narrow trespass grounds, he doesn't actually explain how the "reasonable expectation of privacy" reasoning would apply to GPS tracking. That leaves this important body of law unsettled, which is worrying because it's becoming increasingly common for the police to obtain cell phone location data without a warrant.
Sotomayor attacks the third-party doctrine

Justice Scalia's opinion is the majority opinion only because Justice Sotomayor, an Obama appointee, signed onto it. But in addition to endorsing Scalia's position, she also filed a separate concurrence in which she endorsed both Scalia's concerns about physical trespass and Justice Alito's broader concerns about the dangers of warrantless GPS tracking.

"As Justice Alito incisively observes, the same technological advances that have made possible nontrespassory surveillance techniques will also affect the Katz test by shaping the evolution of societal privacy expectations," Sotomayor wrote. "Under that rubric, I agree with Justice Alito that, at the very least, 'longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.'"

Justice Sotomayor also raised an issue that neither Scalia or Alito addressed: the third party doctrine. That's the theory that we lose Fourth Amendment protection when we disclose information, such as bank records, cell phone locations, or the contents of our email inboxes, to a third party such as Bank of America, Verizon, or Google, respectively.

Sotomayor called the third-party doctrine "ill-suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers."

Sotomayor's discussion of the third-party doctrine has no legal significance, since she was the only one to sign onto her concurrence. But it could prove to have greater significance in the long run. The existence of at least one justice who is skeptical of the doctrine will inspire privacy advocates to raise objections to the idea in future cases. And one of those cases is likely to reach the high court at some point in the future.

If Pajamas Are Outlawed, Only Outlaws Will Wear Pajamas

2012-01-24T23:28:00.002-05:00

I guess that slogan does work better for guns, probably because that's something people might conceivably care about.

At least, until recently it honestly hadn't occurred to me that the wearing of pajamas, even in public, could cause any controversy. Maybe it should have, given the number of words I have directed at the nation's War on Sagging. See, e.g., "Georgia Town Enters Fight Against Sagging Pants," Lowering the Bar (Sept. 14, 2010) (noting that, at the time, at least a dozen state and local legislatures had taken up this critical issue). At least three Louisiana towns banned sagging, including Shreveport (a state ban failed in the Senate). As we can now see, failing to stand up for saggy pants has put our pajama bottoms at risk.

Michael Williams, a commissioner for Caddo Parish (which includes Shreveport), says he was horrified when he visited a local Walmart and espied a group of young miscreants "wearing pajama pants and house shoes." He was extra-horrified when he glanced at one of the young men and noticed that "at the part where there should have been underwear" - you know the part - one of his parts in particular was allegedly "showing through the fabric." Seems like existing law on indecent exposure should cover that, if it was really that bad, but Williams concluded further legislation was necessary.

"Pajamas are designed to be worn in the bedroom at night," said Williams, likely after extensive research on the history and design of pajamas. "If you can't [wear them to the] courthouse, why are you going to do it in a restaurant or in public?" (Um, because those aren't courthouses?) Williams also invoked the "slippery-slope" argument, of course. "Today it's pajamas," he said, "tomorrow it's underwear. Where does it stop?" Seems to me there's only one further step once you get to underwear. This guy is really not that imaginative.

Which raises the question of what such an ordinance might look like. It would have to define "pajamas," for one thing, which could be tricky. Williams has suggested the term could be defined as "a garment sold in the sleepwear section of department stores." But that puts our pajama rights in the hands of department-store managers, though it could also provide an easy way around the ban by just shelving pajamas differently. Maybe partly for this reason, the parish sheriff does not seem sold on the idea. "It's going to be very difficult to enforce the way it's described," he said. Doesn't mean they won't try; Shreveport has been enforcing its saggy-pants ban, reporting 31 "incidents" during 2010, one every 12 days or so, involving the "wearing of pants below the waist in public." Presumably no other crimes were committed in the city that year.

The Shreveport Times was able to locate two citizens who could be affected by the ban. Neither seemed too happy about it. "We all wear our pajamas out," said Tracy Carter. By "we," she meant herself and her three children, one of whom was wearing dinosaur pajamas at the time in flagrant violation of community standards. "They're covering everything," she said of her PJs. (Thankfully, they were.) Another pajama bandit was more outspoken. "I'm an American," said Khiry Tisdem, "and I can wear my [pajamas] anywhere I want." There is a First Amendment issue here, it's true, although some will ask what the Founders thought about this. "I'm a grown man," Tisdem continued, wearing pants with pictures of Stewie from Family Guy on them. "I can wear my clothes the way I want." We'll see about that.

Williams said he plans to "poll his fellow commissioners" on the topic in February, and presumably will then draft an ordinance to address the pajama crisis if a majority of them don't think this is stupid.

Judge: Fifth Amendment doesn't protect encrypted hard drives

2012-01-24T15:08:00.000-05:00

By Timothy B. Lee

A federal judge has ruled that a Colorado woman can be compelled to decrypt her encrypted laptop so that the police can inspect it for incriminating evidence. The woman, Ramona Fricosu, is a defendant in a mortgage scam case. She had argued that the Fifth Amednment's privilege against self-incrimination protected her from having to disclose the password to her hard drive, which was encrypted using PGP Desktop.

In previous cases, judges have drawn a distinction between forcing a defendant to reveal her password and forcing her to decrypt encrypted data without disclosing the password. The courts have held that the former forces the defendant to reveal the contents of her mind, which raises Fifth Amendment issues. But Judge Robert Blackburn has now ruled that forcing a defendant to decrypt a laptop so that its contents can be inspected is little different from producing any other kind of document.

Fifth Amendment issues can also arise if acknowledging ownership of a laptop or the existence of relevant documents is itself incriminating. But the police had recorded a phone call between Fricosu and her husband in which she seemed to acknowledge ownership of the laptop and to reference incriminating material on it. Blackburn ruled that barring prosecutors from using the fact that she was able to decrypt the laptop as evidence against her in court would satisfy the Fifth Amendment concerns with compelled disclosure.

Fricosu's lawyer talked to CNET about the case and about his plans to appeal the ruling.

Dubois said that, in addition, his client may not be able to decrypt the laptop for any number of reasons. "If that's the case, then we'll report that fact to the court, and the law is fairly clear that people cannot be punished for failure to do things they are unable to do," he said.

Jurors: leave the information age—or go to jail

2012-01-24T14:31:00.002-05:00

By Peter Bright

An English court has sentenced a juror to six months in prison for contempt of court after she performed research on the Internet and forced the abandonment of a criminal trial.

Psychology lecturer Theodora Dallas, 34, was a member of the jury in the trial of Barry Medlock, accused of causing grievous bodily harm. She looked up certain information related to the trial on the Internet, came across information concerning Medlock, and told her fellow jurors what she had found. One of them informed the judge, causing the judge to abandon the trial. Medlock was later retried and found guilty.

Dallas claims that she was searching for "grievous bodily harm"—a term of art in English law that encompasses wounding and serious injury—to learn what precisely it meant. She claims that she then added "Luton" to the search terms (the town in England where Dallas worked and the trial was being held), and came across a newspaper report that Medlock had been accused, and acquitted, of rape. Such information is not disclosed in trials lest it prejudice the jury.

Contempt of court proceedings were initiated by Attorney General Dominic Grieve. Three judges, including Lord Judge (sic; Igor Judge is an example of New Scientist's nominative determinism in action), the Lord Chief Justice, found her guilty. Lord Judge said that Dallas had deliberately disobeyed the trial judge's instructions not to search the Internet and that "the damage to the administration of justice is obvious."

This is not the only recent case of an English juror being imprisoned for misusing the Internet. In June 2011, Joanna Fraill was sentenced to eight months for contempt of court after contacting one defendant, Jamie Sewart, during a drug case, and researching another, Sewart's boyfriend Gary Knox. Sewart was acquitted early in the case, and then added Fraill as a friend on Facebook. Sewart asked Fraill about the deliberations over Knox's charges. Sewart received a two-month sentence; Knox is now attempting to have his six-year conviction overturned for jury misconduct.

Fraill felt guilty about what she had done and disclosed it to the court. The Lord Chief Justice acknowledged that Fraill had not attempted to pervert the course of justice, but nonetheless insisted on a custodial sentence to "ensure the continuing integrity of trial by jury."
Enforced ignorance

The position of the juror is a peculiar one. On the one hand, the juror is expected to draw on his experiences as a human when assessing the case presented to him. On the other, the juror is supposed to have essentially no outside knowledge, making his assessment only on the basis of the narrow set of facts presented during the trial. Simultaneously, he should be worldly and wise, but also ignorant and naive.

This has always created tensions, but they have never been more acute than today. Not only is information abundantly available—just type whatever you want to know about in a search engine of your choosing—it's expected and depended on. We don't like it when instant access gets taken away from us. The demand that jurors actively avoid informing themselves, while always unsettling for those of an inquisitive nature, has become completely out-of-step with modern life.

The blanket ban on Internet research also intuitively feels heavy-handed. Jurors in a court might well come across vocabulary and terminology that they're not familiar with; they might not know that a "caucasian male" means a white dude, or that "mens rea" refers to the guilty mind and intent to perform a criminal act. While jurors may, depending on jurisdiction and tradition, be permitted to direct demands for clarification to the judge, looking up such information on the Internet would seem harmless.

Clearly, not all Internet research is so innocuous. Learning that a defendant had previously been accused of rape, even if acquitted, may very well be prejudicial, and such findings are likely to taint the jury.

Between the two extremes of harmless dictionary-style research on the one hand and direct investigation into the defendant on the other is a world that is murky and uncertain. It would be difficult to argue that, for example, learning about the history of grievous bodily harm, and some of the notable relevant court decisions in English history, could lead to a juror making a decision that is unjust. But it might nonetheless lead them to make a decision that is different than the one they would otherwise have made.

Taking a hard line against Internet usage is the only way of avoiding "accidental" tainting. While Fraill admitted to deliberately searching for Gary Knox, Dallas did not claim to have directly sought information about Barry Medlock. Rather, she claims to have found the newspaper article after localizing her search on grievous bodily harm. Even searches that might be widely agreed to be harmless in and of themselves could reveal prejudicial information by accident.

The rules given to jurors are essentially unenforceable. Sequestration of juries is unusual. Most of the time, jurors are unsupervised when not in the courtroom, giving them ample freedom to read whatever they like on the Internet. Both Fraill and Dallas got caught only because they told other people what they had done; had they kept quiet, there would have been literally no way of knowing that they had broken the rules (especially as English jurors may not disclose their deliberations or thought processes to anyone, even after the trial has concluded).

In the world of paper research and legal libraries, fewer jurors were motivated to do the leg-work to learn about the case or its defendants (though the newspaper might pose a temptation when it provided reporting on high-profile cases). But in the modern world of search engines and Wikipedia, where similar research might be conducted routinely throughout the day—just look at how smartphone-toting twentysomethings deal with unfamiliar terms on a restaurant menu, for example—such research isn't just "not unusual," it's increasingly the norm. Against this backdrop, can courts continue to demand that jurors willingly place themselves in a bubble of ignorance, and are such demands even meaningful when they depend so heavily on self-incrimination to enforce?

SOPA, Internet regulation, and the economics of piracy

2012-01-22T20:20:00.000-05:00

By Julian Sanchez

Earlier this month, I detailed at some length why claims about the purported economic harms of piracy, offered by supporters of the Stop Online Piracy Act (SOPA) and PROTECT-IP Act (PIPA), ought to be treated with much more skepticism than they generally get from journalists and policymakers. My own view is that this ought to be rather secondary to the policy discussion: SOPA and PIPA would be ineffective mechanisms for addressing the problem, and a terrible idea for many other reasons, even if the numbers were exactly right. No matter how bad last season's crops were, witch burnings are a poor policy response. Fortunately, legislators finally seem to be cottoning on to this: SOPA now appears to be on ice for the time being, and PIPA's own sponsors are having second thoughts about mucking with the Internet's Domain Name System.

That said, I remain a bit amazed that it's become an indisputable premise in Washington that there's an enormous piracy problem, that it's having a devastating impact on US content industries, and that some kind of aggressive new legislation is needed tout suite to stanch the bleeding. Despite the fact that the Government Accountability Office recently concluded that it is "difficult, if not impossible, to quantify the net effect of counterfeiting and piracy on the economy as a whole," our legislative class has somehow determined that—among all the dire challenges now facing the United States—this is an urgent priority. Obviously, there's quite a lot of copyrighted material circulating on the Internet without authorization, and other things equal, one would like to see less of it. But does the best available evidence show that this is inflicting such catastrophic economic harm—that it is depressing so much output, and destroying so many jobs—that Congress has no option but to Do Something immediately? Bearing the GAO's warning in mind, the data we do have doesn't remotely seem to justify the DEFCON One rhetoric that now appears to be obligatory on the Hill.

The International Intellectual Property Alliance—a kind of meta-trade association for all the content industries, and a zealous prophet of the piracy apocalypse, released a report back in November meant to establish that copyright industries are so economically valuable that they merit more vigorous government protection. But it actually paints a picture of industries that, far from being "killed" by piracy, are already weathering a harsh economic climate better than most, and have far outperformed the overall US economy through the current recession. The "core copyright industries" have, unsurprisingly, shed some jobs over the past few years, but again, compared with the rest of the economy, employment seems to have held relatively stable at a time when you might expect cash-strapped consumers to be turning to piracy to save money.

Decreasing creative output?

Since the core function of copyright is to incentivize the production of creative works, it's also worth looking for signs of declining output associated with filesharing. Empirically, it's surprisingly hard to find an effect. Rather, a recent survey study by Felix Oberholzer-Gee of the Harvard Business School concluded that "data on the supply of new works are consistent with the argument that file sharing did not discourage authors and publishers" from producing more works, at least in the US market.

So, for instance, Nielsen SoundScan data shows new album releases stood at 35,516 in 2000, peaked at 106,000 in 2008, and (amidst a general recession) fell back to mid-decade levels of about 75,000 for 2010. That's against a general background of falling sales since 2004—mostly explained by factors unrelated to piracy—which finally seems to have reversed in 2011. The actual picture is probably somewhat better than that, because SoundScan data is markedly incomplete when it comes to the releases by indie artists who have benefited most from the rise of digital distribution.
Most entertainment industries continue to operate on a "tournament" or "lottery" model, where a few hits generate jackpot revenues, sufficient to make up for losses on the majority of new products

If we look at movies, the numbers compiled by the industry statistics site Box Office Mojo show an average of 558 releases from American studios over the past decade, which rises to 578 if you focus on just the past five years. The average for the previous decade—before illicit movie downloads were even an option on most people's radar—is 472 releases per year. (As we learn from a recent Congressional Research Service report, it's weirdly hard to detect a strong overall correlation between output and employment in the motion picture industry, which actually fell slightly from 1998 to 2008, even as profits and CEO pay soared. One reason is the growing trend in recent decades for "Hollywood" features to actually be produced in Canada or Australia.)

That's all very nice, one might object, but wouldn't these heartening numbers be even higher if labels and studios could recapture some of the revenue lost to illicit downloads? Well, they surely might—but it's not nearly as clear as you'd think.

One reason is that they already are recapturing much of that revenue through "complementary" purchases. As Oberholzer-Gee observes, recording industry numbers show large increases in concert revenues corresponding to the drop in recorded music sales. That suggests that, as people discover new artists by sampling downloaded albums online, they're shifting consumption within the sector to live performances. In other words, people have a roughly constant "music budget," and what they don't spend on the albums they've downloaded gets spent on seeing that new band they discovered. For the firms that specifically make their money from the sale of recordings, that may seem like cold comfort, but if we're concerned with the music industry as a whole, it's a wash. Something similar might occur with respect to purchases of merchandise based on licensed film properties.

Another factor is that, notwithstanding projections of a "long tail" effect resulting from lower search and distribution costs in the digital era, most entertainment industries continue to operate on a "tournament" or "lottery" model, where a few hits generate jackpot revenues, sufficient to make up for losses on the majority of new products. Unsurprisingly, the most heavily pirated movies each year tend to be the ones that are also highly successful at the box office and in DVD sales, with similar patterns in album downloads. In other words, bleeding revenue to piracy is going to be a problem to the extent that your product is a hit, in a market where the core uncertainty about this crucial fact (at the time when the decision whether to greenlight production is made) looms a lot larger than the marginal loss from illicit downloads if you are successful.

It's a tricky but more or less tractable problem to estimate roughly how many full-time jobs you'll need regionally to support one additional $150 million movie production next year. It's a totally different question how aggregate sectoral employment in a volatile and evolving industry changes based on investor responses to a $150 million across-the-board drop in the size of the total film jackpot, especially given that arcane financial arrangements are one place Hollywood does show a genius for constantly adapting its business model. If you want to know how many people are getting laid off when McDonald's revenues drop, it makes a difference whether it's each of 13,000 franchises earning $100 less per year, or one franchise earning $1.3 million less, even though the total reduction is the same.

Finally, more demand for content being captured by the content industries is not always the same thing as demand for more content, in the sense of "a greater variety of output." I noted earlier that the past few years have seen a significant spike in the number of movie titles released annually. But as the Los Angeles Times reported in 2008, studio executives soon began complaining about a "glut" of new movies, many of which were targeted at the same demographics, and therefore cannibalizing their own audiences. As one executive suggested, that meant that (at least in a market dominated by a few huge distributors) releasing fewer titles could yield higher profits—and, indeed, the number of titles released in the following two years dropped back to mid-decade levels.

The key point here is that shifting some portion of the pirate audience to some form of legal viewing doesn't necessarily change this basic calculus, because there's an upper bound to the number of hours most people are going to spend watching (say) racing movies, whether they're paying for the privilege or not. Rising demand can just as easily, for instance, bid up star salaries for a fixed number of films.

Still seeking a real, quantifiable link

The point here isn't that piracy by American consumers is somehow completely independent from output or employment rates in the content industries—though, again, that's not at all the same thing as the overall US employment rate. Obviously, at some level it has to have some effect. But the link is, to use the technical economic term, weirder than in many other sectors of the economy. In many industries, the relationship between consumer spending and job creation is relatively straightforward. If demand for widgets or restaurant meals rises, satisfying that demand requires a roughly linear increase in widget factories and restaurants, in hiring of widget-makers and cooks and waiters, and in purchases of the raw material inputs for those goods. Distribution of copyrighted content—and in particular digital distribution over the Internet—is a bit more complicated, for precisely the same reason piracy is an issue: once the first copy of a work has been created, an unlimited number of additional units (of the digital product) can be produced at effectively zero cost.

No doubt piracy is costing the content industries something—or they wouldn't be throwing so much money at Congress in support of this kind of legislation

Let's imagine, implausibly, that a measure like SOPA did manage to reduce online piracy by US consumers by some meaningful amount. A small portion of that reduction, the minority of downloads representing legal purchases displaced by file sharing, would translate into sales for the content industries. What form would these take? It seems reasonable to suppose that the majority of people who were previously getting their music and movies from The Pirate Bay are not typically lining up to buy shiny plastic discs at Wal-Mart. Rather, they're probably disproportionately displacing legal digital downloads from venues like iTunes and Amazon, or subscription services like Netflix and Spotify, which are pretty clearly where the overall market is quickly going anyway. (Apparently, literal thieves don't even bother stealing physical media anymore.) For movies, there's probably also some displacement of theatrical ticket sales, though as the theatrical experience is in many ways a distinct good, it's hard to say how much substitution it's reasonable to expect.

In the very short term, increased legal purchases of digital content wouldn't seem likely to generate many additional jobs. If spending in the physical retail sector jumps 20 percent, shops need to hire more clerks, and their suppliers more manufacturing workers, to meet the increased demand. If spending in the iTunes store jumps 20 percent, Apple probably needs to pay a few bucks more for bandwidth and electricity, but basically everyone just gets to smile and pocket the extra profit. The jobs effects estimates we're seeing tossed around, however, are coming from a 2007 study that would have had to employ, at the most recent, adjustments made several years before that to the benchmark multipliers the Bureau of Economic Analysis developed in 2002.

Even leaving aside its many other problems, then, the job impact estimates in that study would have been largely based on legacy assumptions from a brick-and-mortar economy. (The loss estimates relied on would also, necessarily, fail to account for the recent rise of popular, legal streaming services that have likely lured many consumers back from the pirate market. There is, alas, no very good data here, but I'd wager Hulu and Netflix have done exponentially more to reduce piracy losses than enforcement crackdowns ever will.) In any event, you'd expect the most immediate effect of consumer spending shifts from widgets and restaurants to digital downloads would be, if anything, fewer net jobs. The output and employment effects, rather, would show up in the longer term as lower returns reduce incentives to produce new content—and hire the workers needed to support that production. For some of the reasons discussed above, though, empirically there's just not much evidence for a dramatic effect of this kind.

No doubt piracy is costing the content industries something—or they wouldn't be throwing so much money at Congress in support of this kind of legislation. If we could wave a magic wand and have less piracy, obviously that would be good. But in the real world, where enforcement has direct costs to the taxpayer, regulation has costs on the industries it burdens, and the reduction in piracy they're likely to produce is very small, it seems important to point out that the credible evidence for the magnitude of the harm is fairly thin.

As a rough analogy, since antipiracy crusaders are fond of equating filesharing with shoplifting: suppose the CEO of Wal-Mart came to Congress demanding a $50 million program to deploy FBI agents to frisk suspicious-looking teens in towns near Wal-Marts. A lawmaker might, without for one instant doubting that shoplifiting is a bad thing, question whether this is really the optimal use of federal law enforcement resources. The CEO indignantly points out that shoplifting kills one million adorable towheaded orphans each year. The proof is right here in this study by the Wal-Mart Institute for Anti-Shoplifting Studies. The study sources this dramatic claim to a newspaper article, which quotes the CEO of Wal-Mart asserting (on the basis of private data you can't see) that shoplifting kills hundreds of orphans annually. And as a footnote explains, it seemed prudent to round up to a million. I wish this were just a joke, but as readers of my previous post will recognize, that's literally about the level of evidence we're dealing with here.

In short, piracy is certainly one problem in a world filled with problems. But politicians and journalists seem to have been persuaded to take it largely on faith that it's a uniquely dire and pressing problem that demands dramatic remedies with little time for deliberation. On the data available so far, though, reports of the death of the industry seem much exaggerated.

Julian Sanchez is a research fellow at the Cato Institute, where he focuses primarily on issues at the busy intersection of technology, privacy, civil liberties, and new media. He was formerly Ars Technica's Washington Editor, and his writing has appeared in The Los Angeles Times, The American Prospect, and Reason, among other places. He also blogs regularly for The Economist's Democracy in America.

Even without DNS provisions, SOPA and PIPA remain fatally flawed

2012-01-18T17:36:00.003-05:00

By Timothy B. Lee

The special interests behind the Stop Online Piracy Act and the Protect IP Act are in full retreat, throwing the bills' most controversial provisions overboard in a desperate attempt to stop the entire bill from sinking. Realizing that proposals to create a DNS-based blacklisting scheme had become politically radioactive, the bills' sponsors—Rep. Lamar Smith (R-TX) and Sen. Patrick Leahy (D-VT), respectively—have pledged to drop these provisions. On Tuesday, even the Motion Picture Association of America declared that DNS filtering was "off the table" for this year's legislation.

So with the DNS-blocking provisions dead, are today's protests much ado about nothing? Not by a long shot. While the DNS language posed the gravest danger to free speech online, the bills are full of provisions that trample free speech, due process, and online innovation.

It's hard to know exactly what will be in the final version of these bills, since they are still due for several rounds of debate and amendment before they could reach President Obama's desk for a signature. But the latest versions of the bill we could get our hands on—the version of PIPA reported out of the Senate Judiciary in May, and Rep. Smith's "manager's amendment" to SOPA from December—show a number of remaining problems, and we've gotten no commitments from the sponsors to address these remaining issues.

Both PIPA and SOPA feature inadequate judicial oversight, allowing injunctions to be granted after a single, one-sided court hearing. Both give the power to seek injunctions not only to the attorney general but also to private copyright holders. And SOPA has a provision, not included in PIPA, that would make unauthorized streaming of copyrighted content a felony punishable by up to 10 years in prison.

Due process problems

The Supreme Court has ruled that the First Amendment prohibits prior restraint—limiting access to speech before a court has provided due process to the defendant. In particular, as a letter signed by dozens of law professors pointed out, speakers are entitled to tell their own side of the story to the judge before their content is taken down. And if a defendant loses, he is typically given the opportunity to exhaust his appeals before his speech is censored.

The sponsors of SOPA and PIPA appear to have ignored these concerns. Both bills allow the attorney general (and, in some cases, private parties—more on that later) to request a takedown of an overseas site based on the legal fiction that the website, rather than its owner, is the defendant. Because a website owner isn't technically a party to the case, the judge can issue an injunction before he has even heard the defendant's side of the case. And the attorney general can have the target website cut off from access to search engines, advertising networks, and credit card payments.

Website owners can intervene to overturn an injunction, but the bill envisions this adversarial process happening after the injunction has been issued and the site has already been removed from search engines and had its funding cut off.

To see how this can burden free speech, we need only look at the case of rojadirecta, which was seized by the government last year. The Spanish sports site has been declared legal under Spanish law, but it has taken the site months to get a hearing in an American court. Whether or not the seizure of rojadirecta is declared legal or not, the site should have had its day in court before it lost its domain. SOPA and PIPA would make this problem worse by extending similar procedures to ad networks, payment networks, and search engines.

Private right of action

The seizure of rojadirecta.com was part of Operation In Our Sites, an aggressive anti-piracy operation authorized by the 2008 Pro IP Act. In Our Sites is a law enforcement effort; government officials take suggestions from copyright holders on which sites to target as part of Operation in our Sites, but they evaluate them independently and don't go after every site suggested by copyright holders. For example, out of one batch of 130 industry suggestions, the feds decided that only 82 of them warranted enforcement action.

No similar check would exist for the ad network and payment processing provisions of PIPA and SOPA. Any "qualifying plaintiff," defined as anyone with standing to bring a copyright lawsuit against the target site, would have access to the same one-sided process to seek an injunction. And it could take that injunction to ad networks and payment processors to cut off the flow of funds to the target site. And all of this could happen before the target site had the chance to give its own side, to say nothing of appealing the judge's decision.

This is important because major content producers don't have a great record of restraint when it comes to exercising takedown powers. Last month we covered UMG's claim that it has the power to take down YouTube videos it doesn't own. And the month before that, Warner Brothers admitted that it had sent automated takedowns under the DMCA against content it didn't own and that no Warner employee even looked at.

Neither SOPA nor PIPA have any penalties for copyright holders who abuse their new powers. The Digital Millennium Copyright Act provides for penalties (albeit fairly toothless ones) against copyright holders who abuse the powers provided by its notice-and-takedown rules. In contrast, websites targeted by bogus SOPA or PIPA injunctions would have no recourse.

Felony streaming

Last year, Sen. Amy Klobuchar (D-MN) introduced legislation that would ratchet up the penalties for unauthorized streaming of copyrighted works. Under her bill, you could face up to five years in prison if you show 10 or more "public performances" over the Internet in a 180-day period, and the total retail value of the "performances" exceeds $2500.

When Rep. Smith introduced SOPA, he incorporated a lightly modified version of Klobuchar's bill. His version sets the bar even lower than Klobuchar's. Streaming even one copyrighted work subjects you to liability if it has a retail value of at least $1000. And any streaming of unauthorized copyrighted material "for purposes of commercial advantage or private financial gain" is subject to punishment.

Noted copyright scholar Justin Beiber has called for Klobuchar to be "locked up" for proposing the felony streaming bill. It's not clear exactly what this section of the bill would prohibit (some have suggested the videos that made Bieber famous would have made him a felon, since he sang copyrighted songs without getting licenses for them), but 5-year jail terms seem excessive in any case.
Kill bill(s)

The sponsors of these bills and their allies in the content industry have employed a savvy negotiating strategy. They began with a bill that contained every item in their anti-piracy wish list. This has allowed them to play the role of reasonable compromiser each time they drop a noxious provision from a bill. Yet what remains is still a serious threat to Internet freedom.

In recent months, each new revision of the bills has been slightly less awful than the ones that came before, and they're likely to continue that process in the coming weeks, hoping they can water the bill down enough to mollify the bill's critics.

But we think SOPA and PIPA are beyond saving. It was negotiated in a smoke-filled room with minimal input from the Internet community, and its core provisions are flatly inconsistent with the values of the Internet. Congress should stop considering SOPA and PIPA for this session. They may wish to consider the more reasonable (but still far from perfect) OPEN Act as an alternative. Or if that doesn't satisfy Hollywood, they should spend the next few months brokering a serious conversation between Hollywood and the Internet community. Then maybe all the parties can come back in 2013 with a new proposal that doesn't endanger online freedom.

Excessive Force Is Dangerous — To View on YouTube

2012-01-14T13:15:00.002-05:00

By Ken

Since Rodney King, we've been told that citizens with video cameras will deter excessive force by law enforcement. As video cameras have miniaturized until they're just one app on a smartphone, we're told the same thing, only more emphatically. Patrick highlighted the possibilities here years ago, though sounding a note of caution that a mechanism for reporting what you've taped to a powerful entity is as important as the recording itself.

But you really didn't think that it was going to be that easy, did you?

A certain segment of law enforcement has always viewed the use of force against citizens not as an ugly necessity in extreme circumstances but as a perquisite of the job. Those cops are not going to change their spots just because everyone's got an iPhone. So now we have pushback. Radley Balko documented it at Reason, Carlos Miller documents it tirelessly at Photography Is Not A Crime, and Injustice Everywhere frequently has pertinent stories.

Sometimes the pushback is cloaked in shameless OMG-9/11-CHANGED-EVERYTHING rhetoric, and sometimes it's straight-up thuggery. Cops arrest people for filming police conduct — whether it's out in public or from the photographer's own lawn. Cops profess not to recognize cameras and pretend they are potential weapons, sending the not-too-subtle message that pointing a camera might get your ass shot. When they think they can get away with it, they destroy cameras wholesale. Prosecutors back the cops up: they prosecute citizens for things like "wiretapping" or "disorderly conduct" when they record encounters with cops (even — or perhaps especially — angry and abusive cops), and they abuse governmental power in an effort to keep government-created recordings secret.

So, how is this relevant today? Well, a link on Reddit led me to a disturbing but entirely consistent-with-this trend discovery: Google's Transparency Report, in which Google describes the number and type of take-down demands it receives. Did you think that the New Professionals would be content arresting photographers in the street? Hell, no. If we've gone digital, so have they. And they know how to work the system. Google reports:

We received a request from a local law enforcement agency to remove YouTube videos of police brutality, which we did not remove. Separately, we received requests from a different local law enforcement agency for removal of videos allegedly defaming law enforcement officials. We did not comply with those requests, which we have categorized in this Report as defamation requests.

Click that link and see the statistics for various six-month periods. Note that Google records not just take-down demands (including categories for executive and police demands premised on "national security" and "criticism," among others), but demands for user identifying information. Police would never abuse the system by demanding the identity of photographers who posted videos documenting their conduct, would they? Heaven forfend.

So: bear in mind, when you consider measures like SOPA, that giving the government increased power over internet posts and increased ability to seek out user information may not just impact talking about music and movies — it might impact our ability to talk about, and document, police misconduct. Think the police would never seek to abuse such power? Then you're a damned fool.

Portland Moves to Ban Corporate Personhood

2012-01-14T13:02:00.002-05:00

The Occupy Portland Solutions Committee and the Community Rights Action Group (CRAG) convinced Portland City Council to pass a unanimous resolution overturning Citizens United and all corporate constitutional rights including personhood. There will be a referendum in November for a city-wide vote to completely ban corporate personhood. According to local activist, metaphysician, and self-described philosopher queen, Stephen Quirke, the next step will be passing a binding ordinance, or a community Bill of Rights, that would give the city control over its local ecosystem and take away corporate authority over depleting the natural environment. Spokane almost passed a similar law last November which included a right to nature, wherein the Spokane River had a right to thrive and the life dwelling in the habitat had a right to the water.

My Guantánamo Nightmare

2012-01-10T18:29:00.002-05:00

By LAKHDAR BOUMEDIENE

ON Wednesday, America’s detention camp at Guantánamo Bay will have been open for 10 years. For seven of them, I was held there without explanation or charge. During that time my daughters grew up without me. They were toddlers when I was imprisoned, and were never allowed to visit or speak to me by phone. Most of their letters were returned as “undeliverable,” and the few that I received were so thoroughly and thoughtlessly censored that their messages of love and support were lost.

Some American politicians say that people at Guantánamo are terrorists, but I have never been a terrorist. Had I been brought before a court when I was seized, my children’s lives would not have been torn apart, and my family would not have been thrown into poverty. It was only after the United States Supreme Court ordered the government to defend its actions before a federal judge that I was finally able to clear my name and be with them again.

I left Algeria in 1990 to work abroad. In 1997 my family and I moved to Bosnia and Herzegovina at the request of my employer, the Red Crescent Society of the United Arab Emirates. I served in the Sarajevo office as director of humanitarian aid for children who had lost relatives to violence during the Balkan conflicts. In 1998, I became a Bosnian citizen. We had a good life, but all of that changed after 9/11.

When I arrived at work on the morning of Oct. 19, 2001, an intelligence officer was waiting for me. He asked me to accompany him to answer questions. I did so, voluntarily — but afterward I was told that I could not go home. The United States had demanded that local authorities arrest me and five other men. News reports at the time said the United States believed that I was plotting to blow up its embassy in Sarajevo. I had never — for a second — considered this.

The fact that the United States had made a mistake was clear from the beginning. Bosnia’s highest court investigated the American claim, found that there was no evidence against me and ordered my release. But instead, the moment I was released American agents seized me and the five others. We were tied up like animals and flown to Guantánamo, the American naval base in Cuba. I arrived on Jan. 20, 2002.

I still had faith in American justice. I believed my captors would quickly realize their mistake and let me go. But when I would not give the interrogators the answers they wanted — how could I, when I had done nothing wrong? — they became more and more brutal. I was kept awake for many days straight. I was forced to remain in painful positions for hours at a time. These are things I do not want to write about; I want only to forget.

I went on a hunger strike for two years because no one would tell me why I was being imprisoned. Twice each day my captors would shove a tube up my nose, down my throat and into my stomach so they could pour food into me. It was excruciating, but I was innocent and so I kept up my protest.

In 2008, my demand for a fair legal process went all the way to America’s highest court. In a decision that bears my name, the Supreme Court declared that “the laws and Constitution are designed to survive, and remain in force, in extraordinary times.” It ruled that prisoners like me, no matter how serious the accusations, have a right to a day in court. The Supreme Court recognized a basic truth: the government makes mistakes. And the court said that because “the consequence of error may be detention of persons for the duration of hostilities that may last a generation or more, this is a risk too significant to ignore.”

Five months later, Judge Richard J. Leon, of the Federal District Court in Washington, reviewed all of the reasons offered to justify my imprisonment, including secret information I never saw or heard. The government abandoned its claim of an embassy bomb plot just before the judge could hear it. After the hearing, he ordered the government to free me and four other men who had been arrested in Bosnia.

I will never forget sitting with the four other men in a squalid room at Guantánamo, listening over a fuzzy speaker as Judge Leon read his decision in a Washington courtroom. He implored the government not to appeal his ruling, because “seven years of waiting for our legal system to give them an answer to a question so important is, in my judgment, more than plenty.” I was freed, at last, on May 15, 2009.

Today, I live in Provence with my wife and children. France has given us a home, and a new start. I have experienced the pleasure of reacquainting myself with my daughters and, in August 2010, the joy of welcoming a new son, Yousef. I am learning to drive, attending vocational training and rebuilding my life. I hope to work again serving others, but so far the fact that I spent seven and a half years as a Guantánamo prisoner has meant that only a few human rights organizations have seriously considered hiring me. I do not like to think of Guantánamo. The memories are filled with pain. But I share my story because 171 men remain there. Among them is Belkacem Bensayah, who was seized in Bosnia and sent to Guantánamo with me.

About 90 prisoners have been cleared for transfer out of Guantánamo. Some of them are from countries like Syria or China — where they would face torture if sent home — or Yemen, which the United States considers unstable. And so they sit as captives, with no end in sight — not because they are dangerous, not because they attacked America, but because the stigma of Guantánamo means they have no place to go, and America will not give a home to even one of them.

I’m told that my Supreme Court case is now read in law schools. Perhaps one day that will give me satisfaction, but so long as Guantánamo stays open and innocent men remain there, my thoughts will be with those left behind in that place of suffering and injustice.

Lakhdar Boumediene was the lead plaintiff in Boumediene v. Bush. He was in military custody at Guantánamo Bay from 2002 to 2009. This essay was translated by Felice Bezri from the Arabic.

Biometrics in Argentina: Mass Surveillance as a State Policy

2012-01-10T15:43:00.000-05:00

Last year, the UK dismantled their national ID scheme and shredded their National Identity Registry in response to great public outcry over the privacy-invasive program. Unfortunately privacy protections have been less rosy elsewhere. In Argentina, the national ID fight was lost some time ago. A law enacted during the military dictatorship forced all individuals to obtain a government-mandated ID. Now, they are in the process of enhancing its mandatory National Registry of Persons (RENAPER) with biometric data such as fingerprints and digitized faces. The government plans to repurpose this database in order to facilitate “easy access” to law enforcement by merging this data into a new, security-focused integrated system. This raises the specter of mass surveillance, as Argentinean law enforcement will have access to mass repositories of citizen information and be able to leverage existing facial recognition and fingerprint matching technologies in order to identify any citizen anywhere.

In the waning days of 2011, Argentinean President Cristina Fernández de Kirchner issued an executive decree ordering the creation of the Federal System of Biometric Identification (SIBIOS), a new centralized, nation-wide biometric ID service that will allow law enforcement to “cross -reference” information with biometric and other data initially collected for the purpose of operating a general national ID registry. Historically, police fingerprint databases were limited to those suspected or convicted of criminal offences. Recently, however, the Argentinean Federal Police (Policía Federal Argentina – PFA) was given a large database holding digital fingerprints collected from random Argentineans as part of the national ID and passport application process. Since March 2011, this database has been fed by data collected through the RENAPER national ID application process. The PFA has managed to amass a database of about 8 million fingerprints, yet this process appears to have been too slow for the Argentinean government. Further to the new decree, the SIBIOS initiative will give PFA access to RENAPER’s database (and vice versa), doubling PFA’s reach to approximately 14 million digitized fingerprints. Starting with the first New Year’s baby of 2012, Argentina has even begun registering newborn biometric information with the SIBIOS. Argentina projects that, as national IDs and passports expire and are renewed (and new babies are born), the SIBIOS database will grow to over 40 million within the next two years.

But the SIBIOS initiative will do far more than expand the number of digitized fingerprints the FPA will have ready access to. According to President Fernández de Kirchner, the SIBIOS will be fully “integrated” with existing ID card databases, which, aside from biometric identifiers, include an individuals’ digital image, civil status, blood type, and key background information collected since her birth and across the various life stages. Further, it is not just the FPA that will have access to this new information sharing system. SIBIOS is designated for use by other federal security forces, including the National Directorate of Immigration, the Airport Security Police, and the National Gendarmerie, and is even available to Provincial enforcement entities, upon agreement with the National State. However, there has been no public discussion about the conditions under which public officials will have access to the data. Supporters of the SIBIOS program tout that it would give law enforcement easy, real-time access to individuals’ data, but whether any of the safeguards typically used to put checks on state surveillance will limit access remains an open question.

Perhaps the most troubling part of this new SIBIOS initiative is the technologies Argentinean law enforcement intends to leverage in order to exploit these databases. The FPA, for example, will be able to use its new facial recognition capacities to search the immense RENAPER digital image repository in order to identify people in photos, and maybe even on surveillance cameras! Argentinean police are also equipping themselves with mobile fingerprinting devices that will allow them to check the fingerprints of any passing Argentinean against the database itself.

The Dangers of Surveillance Society

National IDs and similar methods of data centralization increase state capacity for intrusive surveillance. Coupled with the simultaneous collection of biometric identifiers, such as digitized faces, it creates an additional layer of tracking that is even more pervasive and dangerous. As is the case in Argentina, biometrics are inherently individuating and interfaces easily with database technology, making widespread privacy violations easier and more harmful.

To our alarm, President Fernández de Kirchner has gone so far as to embrace the potential to link unidentified faces obtained through surveillance cameras with identified images through the SIBIOS system. Due to the technology’s relative affordability, street cameras and video-surveillance are now everywhere. Therefore this functionality is especially dangerous with the potential to lead to mass political surveillance. (This visualization shows how there are over 1,000 cameras installed in the Argentinian capital of Buenos Aires alone.)

Given the prevalence of street cameras and how easy it has become to identify one unnamed face amidst thousands, individuals who care about their privacy and anonymity will have a very difficult time protecting their identity from biometrics databases in the imminent future. There are extreme unforeseen risks in a world where an individual’s photo, taken from a street camera or a social network, can be linked to their national ID card. Additionally, matching technologies will only improve with time. (Check here and here to learn more about facial recognition). EFF has long argued that perfect tracking is inimical to a free and democratic society. Citizens have a reasonable expectation of privacy and anonymity, particularly with regard to profiling. A combination of government-run biometric ID systems and facial recognition violates core elements of freedom by making it easy to locate and track people, and dangerously centralizing this data makes it ripe for state exploitation.

As Beatriz Busaniche of Fundacion Via Libre notes, this type of mass surveillance can have serious repercussions for those who are willing to voice political dissent:

“In the name of public security, Argentina has pushed for mass surveillance policies, including the heightened monitoring of public spaces. Privacy is particularly crucial for our country since throughout our long history of social and political movements, calls for action have often taken to the streets. It is of higher importance for activists to remain anonymous in their demonstrations, especially when they are at odds with the government itself. In this way, SIBIOS not only challenges their privacy and data protection rights, but also poses serious threats to their civil and political rights.”

Mora Arqueta, Director of RENAPER, noted in an interview that the current purpose of the national ID scheme is to retain the “maximum amount of personal data, and treat the citizen as an individual who interacts with the State in many places.” Her comments admit to a direct perversion of the existing national identification system, from one that has simply assigned an ID number to an individual, to one that outright violates personal data minimization principles through massive and unnecessary collection of sensitive personal information. The problem with allowing the government to retain so much sensitive data is that it gives it too much unchecked concentrated power. One wonders, for example, those who enacted the decree considered what would have occurred if Argentina's military dictatorship had access to such an expansive database. The public debate in Argentina should therefore be about power and the possible limits of actors in society to know. A healthy amount of distrust is necessary to sustain an open, democratic society.

Fernández de Kirchner’s arguments that SIBIOS provides “a major qualitative leap in security, in the fight against crime” are troubling and represent a further deviation from the purpose for which the RENAPER databases were first created. This argument is misleading, and fails to analyze SIBIOS’ risks and limitations as well as its impact on civil liberties and data protection. Time and again, we have heard the dubious rhetorical argument that biometrics are needed to fight against crime and increase security. In fact, these massive biometrics databases are a honeypot of sensitive data that remains extremely vulnerable for exploitation by criminals and identity thieves themselves.

The rights to privacy and data protection are enshrined in international law and the Argentinean Constitution. Given the long list of privacy concerns surrounding biometrics, and the plausibility of future security breaches, it is irrationally excessive to collect biometric data in a nation-wide ID scheme. The Argentinean government needs to limit the unnecessary collection, processing, retention, and sharing of this very sensitive data. EFF and Fundacion Via Libre in Argentina will work together to fight against these intrusive measures.

The US schools with their own police

2012-01-10T15:27:00.002-05:00

More and more US schools have police patrolling the corridors. Pupils are being arrested for throwing paper planes and failing to pick up crumbs from the canteen floor. Why is the state criminalising normal childhood behaviour?

Chris McGreal

The charge on the police docket was "disrupting class". But that's not how 12-year-old Sarah Bustamantes saw her arrest for spraying two bursts of perfume on her neck in class because other children were bullying her with taunts of "you smell".

"I'm weird. Other kids don't like me," said Sarah, who has been diagnosed with attention-deficit and bipolar disorders and who is conscious of being overweight. "They were saying a lot of rude things to me. Just picking on me. So I sprayed myself with perfume. Then they said: 'Put that away, that's the most terrible smell I've ever smelled.' Then the teacher called the police."

The policeman didn't have far to come. He patrols the corridors of Sarah's school, Fulmore Middle in Austin, Texas. Like hundreds of schools in the state, and across large parts of the rest of the US, Fulmore Middle has its own police force with officers in uniform who carry guns to keep order in the canteens, playgrounds and lessons. Sarah was taken from class, charged with a criminal misdemeanour and ordered to appear in court.

Each day, hundreds of schoolchildren appear before courts in Texas charged with offences such as swearing, misbehaving on the school bus or getting in to a punch-up in the playground. Children have been arrested for possessing cigarettes, wearing "inappropriate" clothes and being late for school.

In 2010, the police gave close to 300,000 "Class C misdemeanour" tickets to children as young as six in Texas for offences in and out of school, which result in fines, community service and even prison time. What was once handled with a telling-off by the teacher or a call to parents can now result in arrest and a record that may cost a young person a place in college or a job years later.

"We've taken childhood behaviour and made it criminal," said Kady Simpkins, a lawyer who represented Sarah Bustamantes. "They're kids. Disruption of class? Every time I look at this law I think: good lord, I never would have made it in school in the US. I grew up in Australia and it's just rowdy there. I don't know how these kids do it, how they go to school every day without breaking these laws."

The British government is studying the American experience in dealing with gangs, unruly young people and juvenile justice in the wake of the riots in England. The UK's justice minister, Crispin Blunt, visited Texas last September to study juvenile courts and prisons, youth gangs and police outreach in schools, among other things. But his trip came at a time when Texas is reassessing its own reaction to fears of feral youth that critics say has created a "school-to-prison pipeline". The Texas supreme court chief justice, Wallace Jefferson, has warned that "charging kids with criminal offences for low-level behavioural issues" is helping to drive many of them to a life in jail.

The Texas state legislature last year changed the law to stop the issuing of tickets to 10- and 11-year-olds over classroom behaviour. (In the state, the age of criminal responsibility is 10.) But a broader bill to end the practice entirely – championed by a state senator, John Whitmire, who called the system "ridiculous" – failed to pass and cannot be considered again for another two years.

Even the federal government has waded in, with the US attorney general, Eric Holder, saying of criminal citations being used to maintain discipline in schools: "That is something that clearly has to stop."

As almost every parent of a child drawn in to the legal labyrinth by school policing observes, it wasn't this way when they were young.

The emphasis on law and order in the classroom parallels more than two decades of rapid expansion of all areas of policing in Texas in response to misplaced fears across the US in the 1980s of a looming crime wave stoked by the crack epidemic, alarmist academic studies and the media.

"It's very much tied in with some of the hyperbole around the rise in juvenile crime rate that took place back in the early 90s," said Deborah Fowler, deputy director of Texas Appleseed, an Austin legal rights group, and principal author of a 200-page study of the consequences of policing in Texas schools. "They ushered in tough, punitive policies. It was all part of the tough-on-crime movement."

Part of that included the passing of laws that made the US the only developed country to lock up children as young as 13 for life without the possibility of parole, often as accomplices to murders committed by an adult.

As the hand of law and order grew heavier across Texas, its grip also tightened on schools. The number of school districts in the state with police departments has risen more than 20-fold over the past two decades.

"Zero tolerance started out as a term that was used in combating drug trafficking and it became a term that is now used widely when you're referring to some very punitive school discipline measures. Those two policy worlds became conflated with each other," said Fowler.

In the midst of that drive came the 1999 Columbine high school massacre, in which two students in Colorado shot dead 12 other pupils and a teacher before killing themselves. Parents clamoured for someone to protect their children and police in schools seemed to many to be the answer.

But most schools do not face any serious threat of violence and police officers patrolling the corridors and canteens are largely confronted with little more than boisterous or disrespectful childhood behaviour.

"What we see often is a real overreaction to behaviour that others would generally think of as just childish misbehaviour rather than law breaking," said Fowler. Tickets are most frequently issued by school police for "disruption of class", which can mean causing problems during lessons but is also defined as disruptive behaviour within 500ft (150 metres) of school property such as shouting, which is classified as "making an unreasonable noise".

Among the more extreme cases documented by Appleseed is of a teacher who had a pupil arrested after the child responded to a question as to where a word could be found in a text by saying: "In your culo (arse)", making the other children laugh. Another pupil was arrested for throwing paper aeroplanes.

Students are also regularly fined for "disorderly behaviour", which includes playground scraps not serious enough to warrant an assault charge or for swearing or an offensive gesture. One teenage student was arrested and sent to court in Houston after he and his girlfriend poured milk on each other after they broke up. Nearly one third of tickets involve drugs or alcohol. Although a relatively high number of tickets – up to 20% in some school districts – involve charges over the use of weapons, mostly the weapons used were fists.

The very young are not spared. According to Appleseed, Texas records show more than 1,000 tickets were issued to primary schoolchildren over the past six years (although these have no legal force at that age). Appleseed said that "several districts ticketed a six-year-old at least once in the last five years".

Fines run up to $500. For poorer parents, the cost can be crippling. Some parents and students ignore the financial penalty, but that can have consequences years down the road. Schoolchildren with outstanding fines are regularly jailed in an adult prison for non-payment once they turn 17. Stumping up the fine is not an end to the offending student's problems either. A class-C misdemeanour is a criminal offence.

"Once you pay it, that's a guilty plea and that's on your record," said Simpkins. "In the US we have these astronomical college and university expenses and you go to fill out the application to get your federal aid for that and it says have you ever been arrested. And there you are, no aid."

In Austin, about 3% of the school district's 80,000 pupils were given criminal citations in the 2007/8 school year, the last date for which figures are available. But the chances of a teenager receiving a ticket in any given year are much higher than that because citations are generally issued to high-school pupils, not those in kindergarten or primary school.

The result, says the Appleseed report, is that "school-to-prison pipeline" in which a high proportion of children who receive tickets and end up in front of a court are arrested time and again because they are then marked out as troublemakers or find their future blighted by a criminal record.

From her perch on the bench in an Austin courtroom, Judge Jeanne Meurer has spent close on 30 years dealing with children hauled up for infractions, some serious, others minor. Some of the difficulties faced by teachers can be seen as Meurer decides whether a parade of children should be released to await trial or held in custody. Meurer switches between motherly and intimidating depending on what she makes of the child before her.

"Some of them are rough kids," she said. "I've been on the bench 30 years and you used to never have a child cuss you out like you do now. I appreciate the frustrations that adults have in dealing with children who seem to have no manners or respect. But these are our future. Shouldn't we find a tool to change that dynamic versus just arresting them in school and coming down with the hard criminal justice hammer?"

Many of those who appear in front of Meurer have learning problems. Children with disabilities are particularly vulnerable to the consequences of police in schools. Simpkins describes the case of a boy with attention deficit disorder who as a 12-year-old tipped a desk over in class in a rage. He was charged with threatening behaviour and sent to a juvenile prison where he was required to earn his release by meeting certain educational and behavioural standards.

"But he can't," she said. "Because of that he is turning 18 within the juvenile justice system for something that happened when he was 12. It's a real trap. A lot of these kids do have disabilities and that's how they end up there and can't get out. Instead of dealing with it within school system like we used to, we have these school police, they come in and it escalates from there."

Sometimes that escalation involves force. "We had one young man with an IQ well below 70 who was pepper-sprayed in the hallway because he didn't understand what the police were saying," said Simpkins. "After they pepper-sprayed him he started swinging his arms around in pain and he hit one of the police officers – it's on video, his eyes were shut – and they charged him with assault of a public servant. He was 16. He was charged with two counts of assault of a public servant and he is still awaiting trial. He could end up in prison."

Austin's school police department is well armed with officers carrying guns and pepper spray, and with dog units on call for sniffing out drugs and explosives.

According to the department's records, officers used force in schools more than 400 times in the five years to 2008, including incidents in which pepper spray was fired to break up a food fight in a canteen and guns were drawn on lippy students.

In recent months the questionable use of force has included the tasering of a 16-year-old boy at a high school in Seguin, Texas, after "he refused to cooperate" when asked why he wasn't wearing his school identification tag. He then used "abusive language". The police said that when an officer tried to arrest the boy, he attempted to bite the policeman. The youth was charged with resisting arrest and criminal trespass even though the school acknowledges he is a student and was legitimately on the grounds.

Such cases are not limited to Texas. In one notorious instance in California, a school security officer broke the arm of a girl he was arresting for failing to clear up crumbs after dropping cake in the school canteen. In another incident, University of Florida campus police tasered a student for pressing Senator John Kerry with an awkward question at a debate after he had been told to shut up.

Sometimes the force is deadly. Last week, Texas police were accused of overreacting in shooting dead a 15-year-old student, Jaime Gonzalez, at a school in Brownsville after he pointed an air gun, which resembled a real pistol, at them outside the principal's office. The boy's father, also called Jaime, said the police were too quick to shoot to kill when they could have wounded him or used another means to arrest him. "If they would have tased him all this wouldn't have happened," he told the Brownsville Herald. "Like people say there's been stand-offs with people that have hostages for hours … But here, they didn't even give I don't think five minutes. No negotiating." The police say Gonzalez defied orders to put the gun down.

Meurer says she is not against police in schools but questions whether officers should regard patrolling the playground the same way they go about addressing crime on the streets.

"When you start going overboard and using laws to control non-illegal behaviour – I mean if any adult did it it's not going to be a violation – that's where we start seeing a problem," she says. "You've gradually seen this morphing from schools taking care of their own environments to the police and security personnel, and all of a sudden it just became more and more that we were relying on law enforcement to control everyday behaviour."

Chief Brian Allen, head of the school police department for the Aldine district and president of the Texas school police chiefs' association, is having none of it.

"There's quite a substantial number of students that break the law. In Texas and in the US, if you're issued a ticket, it's not automatically that you're found guilty. You have an opportunity to go before the judge and plead your case. If you're a teacher and a kid that's twice as big as you comes up and hits you right in the face, what are you going to do? Are you going to use your skills that they taught you or are you going to call a police officer?"

But Allen concedes that the vast majority of incidents in which the police become involved are for offences that regarded as little more than misbehaviour elsewhere.

"Just like anything else, sometimes mistakes are made." he said. "Each circumstance is different and there's no set guideline. There's also something called officer discretion. If you take five auto mechanics and ask them to diagnose the problem of a vehicle, you'll come up with five different solutions. If you ask five different doctors to diagnose a patient, a lot of times you'll have five different diagnoses. Conversely, if you ask five different police officers if they would write a ticket or not for the same offence, you possibly have five different answers."

Parents who have been sucked into the system, such as Jennifer Rambo, the mother of Sarah Bustamantes, wonder what happened to teachers taking responsibility for school discipline.

"I was very upset at the teacher because the teacher could have just stopped it. She could have said: OK class, that's enough. She could have asked Sarah for her perfume and told her that's inappropriate, don't do that in class. But she did none of that. She called the police," she says.

Politicians and civil liberties groups have raised the same question, asking if schools are not using the police to shift responsibility, and accountability, for discipline.

"Teachers rely on the police to enforce discipline," says Simpkins. "Part of it is that they're not accountable. They're not going to get into trouble for it. The parent can't come in and yell at them. They say: it's not us, it's the police."

That view is not shared by an Austin teacher who declined to be named because he said he did not want to stigmatise the children in his class.

"There's this illusion that it's just a few kids acting up; kids being kids. This is not the 50s. Too many parents today don't control their children. Their fathers aren't around. They're in gangs. They come in to the classroom and they have no respect, no self-discipline. They're doing badly, they don't want to learn, they just want to disrupt. They can be very threatening," he says. "The police get called because that way the teacher can go on with teaching instead of wasting half the class dealing with one child, and it sends a message to the other kids."

The Texas State Teachers Association, the state's main teachers union, did not take a position on ticketing at the recent debate in the legislature over Whitmire's proposal to scrap it. But the association's Clay Robison says that most teachers welcome the presence of police in schools.

"Obviously it looks as if some police officers are overreacting at some schools. I'm a parent and I wouldn't want my 17-year-old son hauled in to court if he and another student got in to an argument in a cafeteria. Police officers need to exercise a little bit of common sense but the police are what they are. They enforce the law," he says. "At the same time, years ago, at a school in one of the better neighbourhoods of Austin, a teacher was shot to death in his classroom. It's still a very rare occurrence but it does happen. Anything that increases the security of the teacher is good so they don't have to worry about personal safety and they can concentrate on teaching the kids. We get complaints from some teachers that the police aren't aggressive enough at moving against some of the older juveniles, those that they feel actually do pose a danger to the teachers or the other students."

Because of Sarah Bustamentes's mental disorders, a disability rights group took up her case and after months of legal battles prosecutors dropped the charges. Ask her how she feels about police in schools after her experience and she's equivocal.

"We need police in school. In my school it can get physical and it can turn out very bad," she says. "But they should stop issuing tickets. Only for physical stuff or bullying. Not what you do in class."

What is the Singularity?

2012-01-09T13:59:00.002-05:00

The Singularity is the technological creation of smarter-than-human intelligence. There are several technologies that are often mentioned as heading in this direction. The most commonly mentioned is probably Artificial Intelligence, but there are others: direct brain-computer interfaces, biological augmentation of the brain, genetic engineering, ultra-high-resolution scans of the brain followed by computer emulation. Some of these technologies seem likely to arrive much earlier than the others, but there are nonetheless several independent technologies all heading in the direction of the Singularity – several different technologies which, if they reached a threshold level of sophistication, would enable the creation of smarter-than-human intelligence.

A future that contains smarter-than-human minds is genuinely different in a way that goes beyond the usual visions of a future filled with bigger and better gadgets. Vernor Vinge originally coined the term "Singularity" in observing that, just as our model of physics breaks down when it tries to model the singularity at the center of a black hole, our model of the world breaks down when it tries to model a future that contains entities smarter than human.

Human intelligence is the foundation of human technology; all technology is ultimately the product of intelligence. If technology can turn around and enhance intelligence, this closes the loop, creating a positive feedback effect. Smarter minds will be more effective at building still smarter minds. This loop appears most clearly in the example of an Artificial Intelligence improving its own source code, but it would also arise, albeit initially on a slower timescale, from humans with direct brain-computer interfaces creating the next generation of brain-computer interfaces, or biologically augmented humans working on an Artificial Intelligence project.

Some of the stronger Singularity technologies, such as Artificial Intelligence and brain-computer interfaces, offer the possibility of faster intelligence as well as smarter intelligence. Ultimately, speeding up intelligence is probably comparatively unimportant next to creating better intelligence; nonetheless the potential differences in speed are worth mentioning because they are so huge. Human neurons operate by sending electrochemical signals that propagate at a top speed of 150 meters per second along the fastest neurons. By comparison, the speed of light is 300,000,000 meters per second, two million times greater. Similarly, most human neurons can spike a maximum of 200 times per second; even this may overstate the information-processing capability of neurons, since most modern theories of neural information-processing call for information to be carried by the frequency of the spike train rather than individual signals. By comparison, speeds in modern computer chips are currently at around 2GHz – a ten millionfold difference – and still increasing exponentially. At the very least it should be physically possible to achieve a million-to-one speedup in thinking, at which rate a subjective year would pass in 31 physical seconds. At this rate the entire subjective timespan from Socrates in ancient Greece to modern-day humanity would pass in under twenty-two hours.

Humans also face an upper limit on the size of their brains. The current estimate is that the typical human brain contains something like a hundred billion neurons and a hundred trillion synapses. That's an enormous amount of sheer brute computational force by comparison with today's computers – although if we had to write programs that ran on 200Hz CPUs we'd also need massive parallelism to do anything in realtime. However, in the computing industry, benchmarks increase exponentially, typically with a doubling time of one to two years. The original Moore's Law says that the number of transistors in a given area of silicon doubles every eighteen months; today there is Moore's Law for chip speeds, Moore's Law for computer memory, Moore's Law for disk storage per dollar, Moore's Law for Internet connectivity, and a dozen other variants.

By contrast, the entire five-million-year evolution of modern humans from primates involved a threefold increase in brain capacity and a sixfold increase in prefrontal cortex. We currently cannot increase our brainpower beyond this; in fact, we gradually lose neurons as we age. (You may have heard that humans only use 10% of their brains. Unfortunately, this is a complete urban legend; not just unsupported, but flatly contradicted by neuroscience.) An Artificial Intelligence would be different. Some discussions of the Singularity suppose that the critical moment in history is not when human-equivalent AI first comes into existence but a few years later when the continued grinding of Moore's Law produces AI minds twice or four times as fast as human. This ignores the possibility that the first invention of Artificial Intelligence will be followed by the purchase, rental, or less formal absorption of a substantial proportion of all the computing power on the then-current Internet – perhaps hundreds or thousands of times as much computing power as went into the original Artificial Intelligence.

But the real heart of the Singularity is the idea of better intelligence or smarter minds. Humans are not just bigger chimps; we are better chimps. This is the hardest part of the Singularity to discuss – it's easy to look at a neuron and a transistor and say that one is slow and one is fast, but the mind is harder to understand. Sometimes discussion of the Singularity tends to focus on faster brains or bigger brains because brains are relatively easy to argue about compared to minds; easier to visualize and easier to describe. This doesn't mean the subject is impossible to discuss; section III of our "Levels of Organization in General Intelligence" does take a stab at discussing some specific design improvements on human intelligence, but that involves a specific theory of intelligence, which we don't have room to go into here.

However, that smarter minds are harder to discuss than faster brains or bigger brains does not show that smarter minds are harder to build – deeper to ponder, certainly, but not necessarily more intractable as a problem. It may even be that genuine increases in smartness could be achieved just by adding more computing power to the existing human brain – although this is not currently known. What is known is that going from primates to humans did not require exponential increases in brain size or thousandfold improvements in processing speeds. Relative to chimps, humans have threefold larger brains, sixfold larger prefrontal areas, and 98. 4% similar DNA; given that the human genome has 3 billion base pairs, this implies that at most twelve million bytes of extra "software" transforms chimps into humans. And there is no suggestion in our evolutionary history that evolution found it more and more difficult to construct smarter and smarter brains; if anything, hominid evolution has appeared to speed up over time, with shorter intervals between larger developments.

But leave aside for the moment the question of how to build smarter minds, and ask what "smarter-than-human" really means. And as the basic definition of the Singularity points out, this is exactly the point at which our ability to extrapolate breaks down. We don't know because we're not that smart. We're trying to guess what it is to be a better-than-human guesser. Could a gathering of apes have predicted the rise of human intelligence, or understood it if it were explained? For that matter, could the 15th century have predicted the 20th century, let alone the 21st? Nothing has changed in the human brain since the 15th century; if the people of the 15th century could not predict five centuries ahead across constant minds, what makes us think we can outguess genuinely smarter-than-human intelligence?

Because we have a past history of people making failed predictions one century ahead, we've learned, culturally, to distrust such predictions – we know that ordinary human progress, given a century in which to work, creates a gap which human predictions cannot cross. We haven't learned this lesson with respect to genuine improvements in intelligence because the last genuine improvement to intelligence was a hundred thousand years ago. But the rise of modern humanity created a gap enormously larger than the gap between the 15th and 20th century. That improvement in intelligence created the entire milieu of human progress, including all the progress between the 15th and 20th century. It is a gap so large that on the other side we find, not failed predictions, but no predictions at all.

Smarter-than-human intelligence, faster-than-human intelligence, and self-improving intelligence are all interrelated. If you're smarter that makes it easier to figure out how to build fast brains or improve your own mind. In turn, being able to reshape your own mind isn't just a way of starting up a slope of recursive self-improvement; having full access to your own source code is, in itself, a kind of smartness that humans don't have. Self-improvement is far harder than optimizing code; nonetheless, a mind with the ability to rewrite its own source code can potentially make itself faster as well. And faster brains also relate to smarter minds; speeding up a whole mind doesn't make it smarter, but adding more processing power to the cognitive processes underlying intelligence is a different matter.

But despite the interrelation, the key moment is the rise of smarter-than-human intelligence, rather than recursively self-improving or faster-than-human intelligence, because it's this that makes the future genuinely unlike the past. That doesn't take minds a million times faster than human, or improvement after improvement piled up along a steep curve of recursive self-enhancement. One mind significantly beyond the humanly possible level would represent a Singularity. That we are not likely to be dealing with "only one" improvement does not make the impact of one improvement any less.

Combine faster intelligence, smarter intelligence, and recursively self-improving intelligence, and the result is an event so huge that there are no metaphors left. There's nothing remaining to compare it to.

The Singularity is beyond huge, but it can begin with something small. If one smarter-than-human intelligence exists, that mind will find it easier to create still smarter minds. In this respect the dynamic of the Singularity resembles other cases where small causes can have large effects; toppling the first domino in a chain, starting an avalanche with a pebble, perturbing an upright object balanced on its tip. (Human technological civilization occupies a metastable state in which the Singularity is an attractor; once the system starts to flip over to the new state, the flip accelerates.) All it takes is one technology – Artificial Intelligence, brain-computer interfaces, or perhaps something unforeseen – that advances to the point of creating smarter-than-human minds. That one technological advance is the equivalent of the first self-replicating chemical that gave rise to life on Earth.

For more information, continue with "Why Work Toward the Singularity?"

Collaborative Consumption, Trust and the Evolution of Credit

2012-01-08T16:57:00.000-05:00

by Christopher Maag

Jeremy Barton owns a nice Subaru Impreza, but he rarely drives it. As a co-founder of a tech startup in San Francisco, he usually just rides his bike to work. So when Barton heard of a new website called Relay Rides that lets regular people rent out their own cars, it sounded perfect.

“Not only does it help pay my car payment and my insurance, but I also get a really good feeling knowing that someone can use it,” says Barton, who’s 27.

But getting started as a do-it-yourself car rental company proved more difficult than Barton expected. For weeks after he joined Relay Rides, his Subaru continued sitting in its parking spot, unused. With no reviews of Barton or his car on the website, borrowers skipped over him to use cars that already had been well-reviewed.

And when Barton finally received a text message informing him that the car would be rented, he had some concerns. Who was this mystery borrower? Would they trash his car?

“I was nervous about it, to be honest,” says Barton. “I didn’t panic. But I would’ve liked to know more information about the person. It would’ve given me a bit more ease.”

So Barton, the very definition of an early adopter, decided to do something about it. His company, Legit.co, uses data culled from social media sites including Twitter and Facebook to help users on websites similar to Relay Rides figure out who’s trustworthy and who’s not. After all, if Barton had a moment of trepidation about lending his car to a stranger, imagine how much work lies ahead for Relay Rides, as it tries to expand its network of car lenders and borrowers across America.

“To create a true collaborative consumption industry, finding a way to establish trust between strangers is an absolute requirement,” says Shelby Clark, co-founder of Relay Rides.com.

And yet, despite the hurdles, it’s happening. Consider the case of Airbnb.com, a website that lets people rent out their apartments directly. According to the company’s website, AirBnB rents out apartments in more than 19,000 cities and 192 countries, and consumers have booked more than 2 million nights through the service. Then there are the peer-to-peer lending websites like Zopa.com, Prosper and Lending Club, which collectively facilitate the lending of billions of dollars a year between peers all over the world. To date, according to stats on its site, Lending Club alone has processed more than $460 billion dollars in loans that have generated nearly $40 million dollars in interest paid to investors.

The activity on all of these sites is a form of “collaborative consumption.” That sounds like a mouthful, but actually it’s very simple. For the last two centuries, capitalism has grown around the idea that if you need something, you buy it. Need to drive to work? Buy a car. Need to mow your grass? Buy a lawnmower. Need any service at all, from babysitting to grocery delivery to a college class on how to use Excel spreadsheets? Buy them.

All About Community

Collaborative consumption is based on the idea that each of these problems actually could be solved in a variety of different ways, often at greater profit to the seller and lower cost to the person in need. Instead of buying a car, you could use a website to connect with people looking to share their cars, or others hoping to carpool. Rather than buying a garage full of lawn tools that get used once a month, a collaborative consumption service could help you barter tools and lawn care services with your neighbors. To handle those annoying chores of modern life like carting home groceries or building Ikea furniture, maybe you could use an online community to find people who actually like doing those things, and who would trade their services for access to things you already know or own.

“The generation I’m in values experiences and purpose more than material goods,” says Michael Karnjanaprakorn, a cofounder of Skillshare.com, where people offer to teach each other classes on anything from how to make baby food to becoming a pro flea market shopper. “People say, ‘I don’t need to buy this stuff anymore, so why don’t I make my life richer and have better experiences?’”

There’s another realization at work here, too: To sell things, we no longer need so many middlemen. The Internet is a peer-to-peer distribution mechanism that allows individuals to conduct transactions directly with one another.

Considered individually, a website like Relay Rides seems like exactly that: Just one more website. But taken together, collaborative peer-to-peer sites actually are at the core of a brand-new industry, one that supporters say could alter the fundamental way that commerce works.

“I believe that we’ll look back and see this period as a collaborative revolution,” Rachel Botsman, a writer and entrepreneur who focuses on collaborative companies, told an audience at a recent TED conference, “a turning point where we use technology to reinvent entire sectors, leapfrog over broken consumer models, and find a healthier balance between the needs of individuals, the needs of companies and the greater good of society.”

Heady stuff. But everybody who works in this new collaborative consumption field agrees that none of that transformation can happen until they figure out ways to build real trust online. Which is why the brand-new industry of collaborative consumption has sprouted an even newer industry: Trust verification. In the last few months, a score of small startup companies has spring up, all of them trying to figure out ways to help users of collaborative websites figure out whom to trust, and whom to avoid.

What they’re trying to create, really, is a new system of credit for online interactions. To put it simply, trust verification is to collaborative consumption websites as credit scores are to traditional banks and lenders. When a bank lends you money for a mortgage or for credit card purchases, they are taking a risk. How do they know that you will pay back what you’ve borrowed? Traditional lenders use credit scores to assess the likelihood that you will default on your debts. (Some lenders, including Brett King, founder of Movenbank, foresee a day when data from social media may be used alongside traditional data like FICO scores to determine whether people qualify for credit.)

Similarly, if someone lends you their car, they’re taking a risk. They’re giving you credit, in the form of their car. How do they know you won’t trash their car and stick them with the repair bill?

Honestly, they don’t. Any ne’er-do-well could go to any number of websites—Relay Rides, Zimrides, WhipCar—borrow a car today, and destroy it. Tomorrow they could sign up on the next site and do the same thing all over again. Since there’s no way to track bad behavior across multiple sites, there’s no trusted way to weed out the few bad actors who make the whole system dangerous for everybody else.

“The most important thing, I think, is if you do not behave well on Relay Rides, you cannot get away from that,” Clark says. “I want that disincentive. If you don’t pay your credit card, you cant just eliminate that form your credit report. It’s going to follow you around.”

If they figure out this fundamental problem quickly, supporters believe that collaborative consumption could take its place alongside Henry Ford’s assembly line as a major development in modern economic history. They may be able to create an entirely new system of credit, one which take more into account than the information in traditional credit scores.

If they fail, the whole collaborative consumption experiment could wither and die (as industry insiders feared it might this summer after Airbnb, one of the biggest collaborative sites, fumbled its reaction to the industry’s first-ever trust crisis.)

“Somebody needs to figure out a really solid solution to this problem,” Barton says.

A Problem of Trust

Rachel Botsman is a graduate of Harvard and Oxford, a partner in the venture fund Collaborative Lab, and an eloquent cheerleader for collaborative consumption. In the United States, she also happens to enjoy an excellent credit rating.

But when Botsman and her husband moved to Australia, none of that mattered. Suddenly, she had no credit history at all. That meant she couldn’t do all sorts of basic things, like get a cell phone.

The same thing happens to Internet users every day. A regular Ebay seller may have a perfect five-star approval rating built over five years of honest dealings. But if that person goes to Relay Rides or Airbnb to rent out her car or her apartment, suddenly she’s back to square one. Nobody knows her. Nobody trusts her. It’s not that she has bad credit. She has no credit at all.

“You’re like a ghost in the system,” Botsman says. “Nobody knows if they can trust you, and you don’t fare very well.”

Once a user has gotten established in a new online sharing community, there are still opportunities for trouble. Last summer a number Airbnb users complained that renters they had found through the site trashed their homes. One woman found her jewelry stolen and her apartment ransacked, according to her blog post about the incident. A man came home to discover drug paraphernalia in his house. The renters also stole his birth certificate, according to his written account.

This was a major problem, not just for Airbnb but for all collaborative websites.

“The troubles at Airbnb this summer were a wakeup call,” says Karnjanaprakorn.

To compound the problem Brian Chesky, Airbnb’s co-founder and CEO, admitted that the company’s response was too slow and insensitive.

“We dropped the ball,” Chesky told The New York Times. Airbnb did not respond to multiple requests for comment for this story.

After that initial stumble, however, Airbnb and other collaborative websites responded swiftly. For its part, Airbnb announced it would cover up to $50,000 in losses due to theft or vandalism for people who rent out their homes using the site. The company also added a 24-hour hotline for people experiencing problems with Airbnb rentals, and doubled its customer support staff.

The incident reverberated around the collaborative consumption industry. All of sudden, companies realized that building systems of trust into their websites isn’t merely a nice thing to do. It’s a business necessity, especially when people are renting out such intimate and valuable things as their cars, homes, garden spaces and personal skills.

“The Airbnb thing this summer took a discussion that was important and not urgent, and made it urgent,” Clark says.

What It Boils Down To

In very short order, entrepreneurs in the collaborative consumption industry were learning what matters most to consumers who might use their sites. These boil down to two primary questions:

1) Identity. Are the people we meet online actually the people they claim to be?

2) Trust. Can we trust the people we meet on your site to be respectful and honest?

“The most important thing we can do for our users is make a really trustworthy experience for them,” says John Zimmer, cofounder of ZimRide.com, a trip sharing website.

Virtually every collaborative consumption website has a system, however rudimentary, for establishing identity and trust. The most common is also the simplest: Letting users connect their profiles to Facebook and Twitter. If someone has a hundred friends on Facebook or a few dozen Twitter followers, the thinking goes: It’s probably a good bet that they’re a real person.

And if users can see that they visit some of the same restaurants, like some of the same bands or live in the same neighborhood, they may feel more comfortable sharing their homes, cars and knowledge.

Skillshare.com is a website where people offer to teach each other classes on everything from personal finance to still life painting. The only thing that’s needed before you join is a link to Facebook and Twitter, where prospective teachers and classmates can go to check you out. Do all your profile photos look like the same person? Do you say you live in the same city and have similar interests across multiple sites? Linking to multiple social media sites allows users to cross-reference each other.

“You have Twitter, LinkedIn and Facebook where your trustworthiness is already verified by other people and the things you do,” says Michael Karnjanaprakorn, a cofounder of Skillshare.

Some in the industry think that may be good enough.

“I don’t need anything fancy,” Karnjanaprakorn says. “When you have Twitter, LinkedIn and Facebook, where your trustworthiness is already verified by other people and the things you do, I can tell, “Oh, it’s cool. I can trust this person.”

And once people use social media links to open the front door to a new collaborative community, reviews by other users is what enables them to stay.

“All of it revolves around what other people say about you,” says Karnjanaprakorn. “That’s all that matters.”

A New Industry Is Born

Others think that to really take off, collaborative consumption websites must do more. Instead of merely a key to unlock the front door, they envision an online system of trust verification that works much the way that credit scores work in the offline world: An inescapable record of one’s behavior, for good as well as for ill.

“It’s no different than a credit score on the Internet,” Karnjanaprakorn says.

To create a trust-based scoring system for the Internet, the first issue is portability. As Botsman learned, people who spent years building up strong reputations as Ebay sellers want to take their reputations along as they join new sites. Checking someone’s Facebook profile is one way to do that, but it doesn’t carry the same weight as scores, ratings and reviews that are already integrated into the collaborative site.

“That’s a problem,” Botsman says. “It’s got to work the first time, or else people give up.”

That’s why a number of companies are working on different versions of a trust score. Trustcloud is a New York-based startup that’s been in business for a year. Its model is to scan social media sites like Facebook and Twitter, looking for data that might infer trustworthiness. The company’s algorithms weigh variables such as how many Facebook friends a person has, how quickly she responds to Tweets, and whether she Tweets consistently, without major gaps.

From there, Trustcloud confers badges on people. Where the Boy Scouts give merit badges for archery and citizenship, Trustcloud’s badges have to do with different measures of trust. There’s a badge for people who are transparent—their personal details are consistent across multiple social networking sites. Another badge is for connectors—people with lots of Facebook friends and Twitter followers. Another is for people deemed “Worldly” for Tweeting from multiple countries.

Trustcloud plans to make the badges portable – once people get a badge, they will be able take it with them from site to site, showing that they have demonstrated elements of trustworthiness. And the best thing for Trustcloud is that all this data is already available now, for free.

The Controversy

Even inside this still-small and close-knit industry, the strategy of using social media to determine trustworthiness is controversial. Critics say that approach is inexpensive, but not necessarily reliable.

“They’re going to over-rely on social media indicators because it’s one of the easiest places to aggregate data,” Botsman says. “But that’s not an accurate representation of whether people can be trusted. I might stop using Facebook for two weeks, but that’s because I went fishing, not because I’m untrustworthy.”

The companies defend the practice. Scanning social media doesn’t tell you everything you need to know about someone, but it may indicate a bare minimum of trustworthiness.

“If you’re running form the law, you’re probably not Tweeting,” says Chuck Chesler, president of Trustcloud. “If you’re tweeting from multiple countries, that means you’re actively telling people who you are and where you are.”

Moreover, entrepreneurs say, they’re constantly trying to get access to more kinds of data. For example, Relay Rides is so concerned with establishing trust that the company pays to check the driving record of every borrower, Clark says. Companies also are working to tweak existing algorithms and write new ones to create better indicators of a person’s trustworthiness.

“Were in the framework constantly, looking to create more badges, better badges,” Chesler says.

Portability cuts both ways, of course. Consumers with good reputations might want to carry their pasts with them; consumers with bad reputations might hope to escape them. Conversely, collaborative consumption entrepreneurs don’t want the vandals who destroyed property using Airbnb to simply switch to Couchsurfing.org and do the same damage all over again.

“If you use the system poorly, your reputation is going to follow you,” Clark says.

In the nascent world of trust verification, this is one of those places where rubber meets road. Just like a credit score can be good or bad news based on a consumer’s personal payment history, so will a portable trust score be a double-edged sword depending on how people behave on the Internet.

Will consumers accept that? The system doesn’t exist yet, so no one really knows. “It means creating something meaningful and portable for the good and for the bad,” Clark says.

Another variable that’s yet to be figured out is control. Specifically, how to use measures of trust to give users increased control in choosing which people to do business with. One current example is ThredUp.com, where parents can buy and sell children’s clothes and toys. Over time, used earn “stylie points” by earning positive reviews from other parents about the quality and style of the goods they sell.

Stylie points become a ranking system, where people with few points are barred from seeing or interacting with people who have lots of points. The more stylie points users earn, the more they are introduced to higher-rated sellers, and the more access they get to top-quality stuff.

“That’s where reputation is becoming a currency that influences what you can access,” Botsman says.

Over at Relay Rides, Clark is considering a similar system. Right now, any user on the site can access any car on the site. But the company’s leaders are thinking about starting a points system where people with more points can access cooler, more expensive cars, like Audis and Teslas. Other companies, including Airbnb, take a more cautious tack. After its summer debacle, the website promised to pay hosts up to $50,000 in the event that guests rob or vandalize their homes.

Conversely, you may lose points if you damage a borrowed car, which could result in limiting which cars you can access, or getting thrown off the site entirely.

“We’re talking about it,” Clark says. “We’re building a robust online feedback system so each side rates the other. Holding people accountable for their actions is really important.”

Where To Now?

The online trust verification industry is so new, it’s hard to even call it an industry. Trustcloud is a year old. Legit.co is four months old. Many other companies dove into the industry in the past few months.

“I feel like some of them have seen a buzz and have jumped on the bandwagon, and not really understood how difficult and complicated this is,” Botsman says.

Some of those companies will last, insiders predict. Many won’t. To survive, they need to do many things at once. First, they need to figure out what data they can access. For some startups, that may prove an insurmountable hurdle.

“It’s so hard to build a system like that unless you’re a Facebook-like platform and you have access to all that data,” Zimmer says. “It’s hard for me to imagine how a startup can do that.”

While Facebook may own a motherlode of data on its users, part of the site’s success is allowing other sites to tap into that well by accessing its application programming interface, or API. That gives companies like Trustcloud plenty of data they can use to predict individuals’ future behavior with at least some degree of certainty, Chesler says.

“We all leave a tremendous data trail across the Internet,” Chesler says. “If you’re on the web and you’re using something for free, you are the product.”

Once they get access to huge piles of data, what do trust verification startups do with it? How do they turn Tweets and Facebook updates into reliable indicators of trustworthiness? Startup leaders say they’re just beginning to figure that out.

“The #1 job in Silicon Valley is no longer a developer,” Chesler says. “It’s a statistician to analyze all this data that’s being created.”

Next, trust verification companies will need to get the big boys on board. Companies like Airbnb and Taskrabbit.com, a website where people can barter skills like wrapping Christmas presents and building Ikea furniture, have built up user bases over several years. Now they have their own systems of trust, and those systems help keep existing users within the fold.

Put differently, why would an established site like Taskrabbit want to help some knockoff competitor (Taskbunny, anyone?) steal its most important asset? The answer: Users.

“Marketplaces have validated to us that this is a concern,” Barton says.

Finally, trust verification companies will have to get users to buy in. After all, what the leaders of websites like Legit have in mind is not merely a simple star system that determines whether you can sell things on Ebay. This entirely new system of credit, based on trust, follows you everywhere you go online. How does such a system track us across the Internet but still maintain privacy? How do consumers correct wrong information or challenge bad reviews?

In short, if collaborative consumption websites want to create a system akin to credit scores, how do they avoid the problems of inaccuracy and opacity that plague the “real” credit scoring system?

Of course, like any good entrepreneur, many collaborative consumption leaders spin that problem as an opportunity.

“Who said the FICO score is the only way?” Chesler says. “What about the rest of your life?”

Very soon, collaborative consumption websites may know more than banks and credit card companies about the rest of their users’ lives. The current crop of small trust verification websites will be winnowed down to just a few, insiders like Karnjanaprakorn say. The victors will help create a new system of credit, one based on trust, one that follows us everywhere we go online, one that hopefully makes it safer to share the stuff and skills we already own.

“I think that in a few years from today, you’ll see one company will win,” says Karnjanaprakorn, “and that’s how you will determine your identity and trustworthiness on the Internet.”

(Correction: An earlier version of this story included two statistics attributed to Rachel Botsman, one of our sources, which stated that “fewer visitors to [New York City] will sleep in a hotel bed than in beds reserved through Airbnb.com” and that, “In the United Kingdom, 10 percent of all lending is done through peer-to-peer websites.” Neither of these stats has been independently verified and as a result we have removed them from the story until they can be.)

(Disclosure: Chuck Chesler, one of the sources in this story, is second cousin to Credit.com’s Editor-In-Chief Michael Schreiber. Mike introduced me to him as a potential source for a story after the two discussed collaborative consumption at a family brunch in New Jersey. Bagels were served.)

Some Occupy L.A. protesters may get a lesson in free speech

2012-01-07T14:33:00.000-05:00

Prosecutors say they can avoid court trials by paying $355 to a private company for an educational program. The irony is not lost on the anti-corporate activists, who see it as patronizing.

Los Angeles police officers arrest an Occupy L.A. protester near the City Hall encampment Nov. 30. Prosecutors say they won't press charges against some demonstrators who pay $355 and complete an educational program on free speech offered by American Justice Associates, a private company.

December 22, 2011 Many Occupy L.A. protesters arrested during demonstrations in recent months are being offered a unique chance to avoid court trials: pay $355 to a private company for a lesson in free speech.

Los Angeles Chief Deputy City Atty. William Carter said the city won't press charges against protesters who complete the educational program offered by American Justice Associates.

He said the program, which may include lectures by attorneys and retired judges, is being offered to people with no other criminal history and who were arrested on low-level misdemeanor offenses, such as failure to disperse.

There have been more than 350 arrests at Occupy demonstrations in Los Angeles since protesters first set up camp outside City Hall in October.

The most recent arrests occurred last weekend, when six protesters climbed a wall and jumped onto the City Hall lawn, which has been fenced off for rehabilitation since police cleared the encampment Nov. 30.

Carter said the free-speech class will save the city money and teach protesters the nuances of the law.

"The 1st Amendment is not absolute," he said, noting that the U.S. Supreme Court has ruled government can regulate when, where and how free speech can be exercised.

But a civil rights attorney who has worked closely with the protesters called the class "patronizing," and said the demonstrators who were arrested are the last people needing free-speech training.

"There they were exercising their 1st Amendment, their lawful right to protest nonviolently," said attorney Cynthia Anderson-Barker.

Several Occupy protesters, many of whom are fueled by anger at what they perceive as corporate greed and the increased privatization of public services, have noted the irony of being asked to pay a private contractor for the program. The tuition will go to the company, not the city, officials say.

In the past, first-time offenders arrested in L.A. protests were typically granted an informal hearing at the city attorney's office.

City Atty. Carmen Trutanich has taken a tougher approach. In several instances, he has gone to court to prosecute protesters, especially if they had tied up traffic or police.

This year, the city has filed charges against some 50 Occupy protesters arrested on more serious offenses or who have criminal records.

But prosecuting the remaining protesters arrested on lesser charges would unduly burden the city attorney's office, said Trutanich's chief legal advisor, Curt Livesay. The office has seen its budget cut 25% in recent years.

The city often turns to privately run pretrial diversion programs like the one offered by American Justice Associates, Livesay said. The programs have different themes, depending on the low-level offenses involved. The city is likely to divert more cases to such classes given overcrowding in jails, he said.

First-time arrestees at other protests this year, including antiwar demonstrations and protests against tuition hikes, also may be offered a chance to enroll in the free-speech diversion program, Carter said.

Anderson-Barker said many Occupy protesters had already paid for their actions, and shouldn't be subjected to a costly class.

The bulk of Occupy protesters — those who were arrested on the night of the LAPD eviction — were held on at least $5,000 bail and locked up for two days.

"Spending that much time in jail was definitely punishment enough," she said.

Between the Lines

2012-01-07T12:43:00.000-05:00

That prized garage space or curbside spot you’ve been yearning for may be costing you—and the city—in ways you never realized. A journey into the world of parking, where meter maids are under siege, everybody’s on the take, and the tickets keep on coming

By Dave Gardetta

Anyone scanning Disney Hall’s debut calendar in the fall of 2003 would have noticed the size of that first season’s schedule, 128 shows in all. That’s a weighty number for a new hall—one might have assumed it was chosen by venue management wanting the gravitas of a world-class chamber’s arrival or perhaps seeking a broad spectrum of music that could reflect the diverse city. Those guesses would have been wrong. Disney Hall had been built atop Parcel K, a county-owned square of land on Bunker Hill that long had sat empty, awaiting development. For decades Parcel K served a prosaic function: It was a parking lot. Commercial landowners like parking lots; they generate cash until better economic conditions arrive, and blank space can be converted into a more profitable moneymaking device—typically a building. The practice is called “land banking.”

Feeling Fined
The city’s most common ticket? Parking during street cleaning, which resulted in 700,000 citations between 2010 and 2011 (the fine: $68); in the same period more than 555,000 were issued for meter violations, the second-most-common parking ticket in the city.

Hot Property
According to a July 2011 survey by Colliers International, Midtown Manhattan is the country’s most expensive place to leave your car, averaging $41 a day, or more than $540 for monthly parking. Boston and Honolulu both edged out L.A., where the average parking downtown is $30 a day. San Francisco and Seattle came in at $26 and $24, respectively.

Irresistible Force
There are currently 565 parking enforcement officers in the City of L.A. Annual salary ranges from $34,000 to $45,000. While it is not illegal to swear at the person giving you a parking ticket, assaulting one could land you in county jail for up to six months or a $2,000 fine or both.

Going Rogue
You can’t be arrested for delinquent parking fines, but you will have to pay penalty fees (with the first late fee, a $58 ticket goes to $116; with the second, it’s $141) and a hold will be placed on your registration. Fail to pay five tickets, and your car is eligible to be impounded or to have a metal boot placed on one wheel, costing you $150 to have it removed.

Territorial
A study by a Penn State University researcher in the 1990s found that people take longer to vacate a space when there is another car waiting for them to leave. However, men left “significantly sooner” when an expensive car was waiting.

Fraud Magnet
A disabled placard or license plate brings with it the right to park free at meters and in preferential parking areas (such as neighborhoods where permits are required)—an attractive perk for fraudsters. Being caught with a fake placard could earn you a $1,000 fine. Parking illegally in a disabled space, like Laker Andrew Bynum was photographed doing earlier this year, can result in a $353 ticket.

Yet before an auditorium could be raised on K, a six-floor subterranean garage capable of holding 2,188 cars needed to be sunk below it at a cost of $110 million—money raised from county bonds. Parking spaces can be amazingly expensive to fabricate. In aboveground structures they cost as much as $40,000 apiece. Belowground, all that excavating and shoring may run a developer $140,000 per space. The debt on Disney Hall’s garage would have to be paid off for decades to come, and as it turned out, a minimum schedule of 128 annual shows would be enough to cover the bill. The figure “128” was even written into the L.A. Philharmonic’s lease. In 2003, Esa-Pekka Salonen opened Frank Gehry’s masterpiece to a packed house with Mahler’s Resurrection, and in the years since, concertgoers—who lay out $9 to enter the garage—have steadily funded performances that exist to cover the true price of their parking.

Donald Shoup, a Yale-trained economist and former chair of UCLA’s Department of Urban Planning, loves telling this story. Gehry’s auditorium may be wonderful, says Shoup, but it is also a fine example of poor planning. The garage—designed to serve the public good—instantly made the Metro immaterial to concertgoers, placed several thousand cars on the road every week, and pumped a few hundred tons of carbon dioxide into the atmosphere each year. Like any parking lot entrance, the one on Bunker Hill sucked air from street life. “L.A.,” says Shoup, “required 50 times more parking under Disney Hall than San Francisco would allow at their own hall.” Downtown already had an oversupply of garages and lots where music fans could leave their cars. “After a concert in San Francisco,” says Shoup, “the streets are full of people walking to their cars, eating in restaurants, stopping into bars and bookstores. In L.A.? The bar next door at Patina is a ghost town.” Receipts that should have gone to the philharmonic’s endowment instead are funding enough parking for nearly every ticket holder to park a car every night downtown.

L.A. has been a wellspring for a parking guru like Shoup to become self-realized. Our downtown contains more parking spaces per acre than any other city in the world and has been adding them at a rate of about 1,000 a year for a century. If you grew up here, the earliest and most essential phrase drilled into you by adults—“Remember, we’re in blue Mickey”—was uttered in a parking lot bigger than Disneyland itself. Angelenos can immediately recognize outsiders, lost souls seen wandering through parking garages with no memory of where the Corolla sits. We valet at Macy’s and at the dentist, at Christmas parties and Oscar shindigs: When Bob Shaye, head of New Line Cinema, threw a party to celebrate The Lord of the Rings in 2004, 900 cars showed up on his cul-de-sac. Shaye had the chaparral lot across the street paved to park them all. L.A. can claim the nation’s first LEED-certified parking garage (Santa Monica Civic Center), and we depend on other prized garages to plan our day’s pilgrimage—Santa Monica (2nd and Colorado, of course), Beverly Hills (Canon and Beverly), Pasadena (Fair Oaks and Green). We dream up complicated strategies to clinch the choicest spot at the curb, and we rely on parking reservations to get on the studio lot, parking passes when returning to our jobs, parking permits to grab a street spot on our streets, and an app to find a space when we go to court to pay a parking ticket.

In the United States hundreds of engineers make careers out of studying traffic. Entire freeway systems like L.A.’s have been hardwired with sensors connecting to computer banks that aggregate vehicle flow, monitor bottlenecks, explain congestion in complicated algorithms. Yet cars spend just 5 percent of their lives in motion, and until recently there was only one individual in the country devoting his academic career to studying parking lots and street meters: Donald Shoup.

Shoup is 73 years old. He drives a 1994 Infiniti but for the last three decades has steered a 1975 Raleigh bike two miles uphill daily in fair weather, from his home near the Mormon temple to the wooded highlands of UCLA’s north campus. He was born near one shore (Long Beach), grew up on a far shore (Hawaii), and resembles a 19th-century figure sketched by Melville. He has a mildly hectic complexion, a halo of silver hair that breaks over his small ears into a white froth of a beard, and brimstone eyes. This year Shoup’s 765-page book, The High Cost of Free Parking, was rereleased to zero acclaim outside of the transportation monthlies, parking blogs, and corridor beyond his office door in UCLA’s School of Public Affairs building. He wasn’t surprised—“There’s not even a name for what I do,” he says. Shoup, however, does not lack for acolytes. His followers call themselves Shoupistas, like Sandinistas, and on a Facebook page they leave posts suggesting parking meters for prostitutes and equations that quantify the contradiction between time spent cruising for free parking versus the “assumed time-value” cited to justify expanding roadways. (The hooker stuff is more interesting.)

After 36 years, Shoup’s writings—usually found in obscure journals—can be reduced to a single question: What if the free and abundant parking drivers crave is about the worst thing for the life of cities? That sounds like a prescription for having the door slammed in your face; Shoup knows this too well. Parking makes people nuts. “I truly believe that when men and women think about parking, their mental capacity reverts to the reptilian cortex of the brain,” he says. “How to get food, ritual display, territorial dominance—all these things are part of parking, and we’ve assigned it to the most primitive part of the brain that makes snap fight-or-flight decisions. Our mental capacities just bottom out when we talk about parking.”

****

In 1930, Oklahoma City had a half-million cars on its streets and seemingly no place to park them. Automobiles were choking commerce: Drivers who worked downtown were monopolizing the parking, keeping away others who wished to conduct business there. Someone needed to invent a machine that could regulate street parking. Carlton Magee was an editor of the Albuquerque Morning Journal when in 1920 he helped uncover what would become the Teapot Dome Scandal. A few years later, in a hotel lobby, a judge whom Magee once accused of corruption walked up and knocked him to the floor. The editor drew his pistol and shot wide, killing a bystander. Acquitted of manslaughter, Magee moved to Oklahoma City to run the Oklahoma News, where parking, not vindictive judges, was the big story. Magee invented the Dual Park-O-Meter, filed for its patent, and on July 16, 1935, 174 parking meters were slotted into Oklahoma City.

For businessmen and courts around the country, the invention of the parking meter was on par with shooting at a judge. In Alabama in 1937, the state supreme court declared Birmingham’s parking meters unconstitutional and ordered them removed. In Los Angeles the Times editorial staff went full steam. Three city attempts to install meters during the 1940s were beat back by stories that described parking meters as “illegal,” “immoral,” and “a perversion.” Nonetheless, in 1949 in North Hollywood the first 400 meters were installed on Lankershim and Magnolia.

Today there are 39,440 parking meters positioned along L.A. streets, each one earning on average about a thousand dollars a year. Some 2,537,521 citations were handed out to motorists by the city’s parking enforcement bureau last year. The most expensive ticket—“Parking hazardous waste carrier in residential area”—is almost never written and costs $378. The most common ticket, for parking on a street cleaning day, will set you back $68. Last year fines to drivers totaled $166,700,840—money that was used to pay for parking operations; surplus revenue is handed over to the city council. The L.A. Department of Transportation, which oversees the city’s parking enforcement program, does not keep tabs on the streets with the most violations. But of its five enforcement areas—which include Central, Southern, Valley, and Western—Hollywood has the highest issuance rate. Not that everybody pays. In May City Controller Wendy Greuel publicized the existence of the DOT’s Gold Card program, which had regularly dismissed tickets issued to city politicians and their staffs. (The report made everyone but Greuel look bad, until the mayor’s office shot back with proof that a top aide of Greuel’s had used the service.) According to an audit by Greuel’s office, $132 million in outstanding fines were collected last year, with 28 percent of citations still unpaid. The DOT monitors the license numbers of some 18,000 scofflaws whose collective tally adds up to around $17 million. As of mid-September the honor for most citations went to a gentleman living on 36th Street. His trailer had received 124 tickets, all unpaid and totaling $13,028.

John Van Horn, a Shoupista who edits the country’s only independent parking magazine, Parking Today, was attending an Australian parking conference five years ago when a local enforcement officer shared a piece of information with him: “Let’s face it, only 10 percent of parking citations ever get written.” Stateside, Van Horn spoke to enforcement managers around the country, who confirmed the Aussie’s remark—drivers with expired meters typically get away 90 percent of the time. Van Horn decided to conduct an experiment. “Once a month,” he says, “I visited a friend who lives by the Grove on a street with permit-only parking.” Van Horn parked without a city pass on each visit and by year’s end had received just two tickets; he escaped without citation about 83 percent of the time. Next, Van Horn parked once a week in a Beverly Hills metered space without paying. His odds improved dramatically. In the span of a year he was cited only twice, a ticket-dodging rate of about 96 percent.

“If you received a ticket for every violation,” says Van Horn, “you’d be yelling Parking Nazi! and Selective enforcement! Elected governments aren’t ready for that outcry, so cities hold back on tickets.” Yet if we evade enforcement as often as Van Horn claims, why does the sight of a ticket on the windshield unhinge our natures? “We break the law often and get away with it,” he says. “Deep down inside we know that. What makes us mad is getting caught the few times we do. Ninety percent of drivers on this street got away scot-free today, but I get the ticket? That makes us crazy.”

Upon receiving citations, frustrated L.A. drivers have spit on parking officers, slashed their tires, attacked their cars with baseball bats, pulled them from their vehicles to beat them, and even fired handguns at officers. It’s like Kabul out there. LAPD commander Michael Williams, the mayor’s recent appointment to take charge of the DOT’s Parking Enforcement Division, might be better equipped to deal with the assaults. His background? Counterterrorism.

Shoup can often be found dallying around parking meters and brings a camera to photograph illegally parked cars. Not long ago you could have spotted Shoup clicking on the corner of Pico and Fairfax, where the city had quadrupled its meter rates. (“Rates had gone too high there—sometimes there wasn’t a car on the street.”) In Westwood Village Shoup once rode the Raleigh back and forth for weeks tailing cars. He discovered that the average driver had to circle the block two and a half times before locating an open metered space. Westwood became a model for Shoup; the “cruising” he observed there occurs wherever drivers seek out inexpensive metered space to avoid pricier garages and lots. (A similar study in Manhattan in 1995 revealed that New Yorkers spent 11 minutes on average searching for a space.) In a year’s time in Westwood, space hunting by drivers consumed an extra 47,000 gallons of gas. It stalled traffic, increased accidents, and required 950,000 extra vehicle miles, about four trips to the moon and back.

The problem, according to Shoupistas, is that meters are priced equally. “Imagine what would happen at Dodger Stadium if every seat cost the same and went on sale game day,” says Dan Mitchell, an engineer at DOT. “Everyone would run for that seat behind home plate—it would be insanity. But that’s what we have now with parking—equal pricing.” This spring the DOT plans to introduce an $18.5 million smart wireless meter system based on Shoup’s theories. Called ExpressPark, the 6,000-meter array will be installed on downtown streets and lots, along with sensors buried in the pavement of every parking spot to detect the presence of cars and price accordingly, from as little as 50 cents an hour to $6. Street parking, like pork bellies, will be open to market forces. As blocks fill, prices will rise; when occupancy drops, so will rates. In an area like downtown, ideal for Shoup’s progressive pricing, people will park based on how much they’re willing to pay versus how far they are willing to walk to a destination. In a trendy area like Melrose Avenue’s shopping district, where parking on side streets is forbidden to visitors, Shoup would open those residential blocks to market-priced meters, wooing home owners by guaranteeing that meter profits would be turned over to them in the form of property tax deductions. (That benefit could add up to thousands of dollars a year per household.)

Brooklyn’s Park Slope neighborhood is already experimenting with a version of the system, and so are San Francisco, Seattle, and Washington, D.C. If adopted by more cities, the system would hopefully stop a Westwood scenario from ever occurring again, guaranteeing one open space of parking at any time of day on every metered block by pricing out drivers who are more willing to park on cheaper blocks. Should a block remain empty, its meters will drop their hourly rates over the course of a month. Nobody, of course, really knows what will happen once L.A.’s system powers up. After Seattle conducted its own study on performance-based parking, engineers noticed an oddity: When prices dropped on certain blocks, drivers actually parked less. No one can explain this.

“In San Francisco we’ve seen prices go up on one block, down on the next, then up again,” says Shoup. “Why that’s happening, we don’t know.” The DOT and Shoup expect ExpressPark to illuminate the static lives of automobiles. “All we need is to move one car off each block for the system to work and get rid of all cruising,” says Shoup. “It’s not like we’re talking about a problem as big as the Reformation or Prohibition.”

Parking is an emotionally hot issue. When the City of Ventura began playing around with Shoup’s ideas last summer, Tea Party activists responded by vowing to vote out three city council members before year’s end. Progressives also adore free parking: San Jose, the hub of enlightened capitalism, has more vacant garage space than it can handle. “Everyone believes parking should be free,” says Van Horn. “We want that in the Constitution. But it’s too expensive, and there’s too much of it. Today there are garages all over L.A. with top floors that have never seen a car.” Whereas a skyscraper of a million square feet in New York may be required to have 100 parking spaces, an equal-size structure in L.A., like the U.S. Bank Tower, is compelled by the city to provide closer to 1,300 spaces. The maxim is wrong: L.A. wasn’t built around the car. It was built around the parking lot. And the individuals who knew this best were the original lot men of downtown L.A.

As a boy working in an Italian-shoe concession, Andrew Pansini had fitted a tiny bell into the heel of a ladies’ shoe, figuring women enjoyed being noticed when they walk. After he arrived in L.A. in 1916, a wooden leg caught his attention: Its owner spent his days flagging down cars, collecting change from drivers who parked on his block and then patrolling their cars. Pansini realized you could move those cars into vacant lots and do better. He found a square of land at 4th and Olive, charged five cents, and waited six days for his first customer to drive in.

By 1920, there were 40 parking lots downtown and by 1926, more than 100, but still there were not enough. Pansini began leveling buildings, looking for more parking. He erased 83 addresses in his career. Jobs disappeared, businesses vanished, neighborhoods faded out, all to make room for more parking lots. Pansini’s most famous fight was his attempt to raze the old City Hall on Broadway. His opponent was Simon Lazarus, who ran the Million Dollar Theater and wanted the land Pansini was after. Eventually the two men squared off in city council chambers. Bidding and counterbidding on the property’s lease escalated until the price was near $3,000, whereupon the proceedings collapsed and neither won. Years later Pansini left Los Angeles for San Francisco, where he reckoned that parking could be found in the ground, not on it. At Union Square in 1942, he built the world’s first underground garage.

By the 1950s, almost a thousand people were licensed to manage parking lots in L.A. New York was a big parking lot town (lots were at a minimum there; profits were high), and so was Chicago. But L.A. had more than 1,300 lots—the largest game of all. Only a handful of L.A. operators could claim more than a few lots. There was Walter Briggs; thin lipped and gangly, he wore his pants too short, strutted like a cowboy from Kansas, cheated on his wives and landlords, and ended up running the LAX concession along with a hundred other sites. There was Chic Wolk, an air force vet who in 1954 was pulling a night shift at Lockheed when he leased his first lot on Bunker Hill, where Angels Flight let out. Wolk had forearms like pistons and fair skin that would soon frizzle in the California sun, and from that original lot—which charged 45 cents a day—Wolk built an empire that would include 163 lots. There was also Mushy Greenstein, an ex-con and illiterate who spent his days at the track with a bodyguard and burned through his leases as fast as he won them, always seeking more gambling cash. But Mushy had talent. He could tell you the monthly income of any city lot at a glance just by driving past it. He was that good.

Lot men were intensely secretive. They never shared their properties’ incomes (a poorly performing lot might lease for $500 a month and could earn an operator a dollar a day for every car), the names of their brokers, or the latest intelligence. Each time a building went up, the parking map shifted and the values of lots rose or fell. Knowing what developers had in mind was key. Wolk won two lots from Walter Briggs that proved to be lucrative. Where were these lots? Wolk won’t say. He retired long ago, sold off his interests, and still he won’t reveal their locations. That’s how secretive lot men were. “Why would you want to know?” Wolk asked recently with suspicion. “Let’s just say they were downtown.”

Briggs and a handful of others had sewn up the parking lot market by the time Ray Liesegang left New York for L.A. in 1966. “Those five men would have breakfast every Saturday at the old Hilton downtown, exchange information, trade leases, and massage the market for themselves,” Liesegang recalls. They didn’t, however, control garages. “Psychologically people didn’t like driving into the bowels of the earth back then,” he says. “I wanted into that.” Liesegang opened the garage at the new Union Bank building before his career really took off. Ventura Boulevard was booming in the 1970s, and at one point Liesegang ran almost every commercial garage along the Valley way. He eventually would manage more than 250 garages, including one on Grand Avenue that grossed $12 million in a single year.

Garages and lots in L.A. take in about $850 million each year, much of it in cash and without a great deal of oversight. Clyde Wilson, the president of an audit firm called the Parking Network, estimates that the city’s garages lose as much as 28 percent of their earnings annually to poor management and theft. In 1980, when LAX lots were producing $15 million in receipts, the airport’s parking manager claimed that employee theft amounted to less than a half-million dollars. After the installation of a computerized system, it was revealed that LAX attendants were stealing close to $4 million a year. “In L.A.,” says Wilson, “just one-quarter of operations have some kind of automation. That means $600 million a year is being processed with no mechanical controls. Loss rates are very high.” They’re also high for the city government, which claims that parking lot owners have cheated the city out of $23 million in tax revenue since 2008. This past October, the city drew up a law requiring permitted parking lot operators to provide mechanical or digital monitoring to do business in L.A.

During the 1990s, Wall Street realized that, loss rates or not, there was money in parking, and a vast consolidation within the industry began. Lot men like Liesegang and Wolk sold out, and national companies moved in—Standard, Central, Ampco System. Lazarus wouldn’t recognize the landscape today if he returned from the grave. No one meets for breakfast at the Hilton these days, no one walks their lots—those spaces are now run by offices in Nashville and Chicago. Very few private operators make real money, as less lucrative management fees long ago replaced lot leases, but Chic Wolk’s daughter, Cari Wolk, is an operator who does. She owns a garage at 6th and Hope, which, after the Standard hotel opened for business, became one of the more profitable garages downtown—a 24-hour operation. How profitable? “Why would you want to know?” she asks.

****

When Rick Cole became a Pasadena councilman in 1983—he would later be mayor of the city—he noticed the town’s historic bungalows were vanishing and quickly being displaced by ugly boxes. These new condo buildings had no doors and sometimes no windows facing the sidewalk. Instead they offered once-charming streetscapes a two-story wall. Whole blocks were being colonized and lost to these incognito squares. Cole wanted to know why.

“It turned out that Pasadena, which didn’t mandate parking when its single-family bungalows were built in the 1920s, now required eight parking spots for a building where four people might live,” says Cole, a Shoupista who is now the city manager of Ventura. “Subterranean parking was too expensive, so a thing called ‘tuck-under’—or semisubterranean—parking was invented.” With tuck-under buildings, residents park half a story below street level and enter their entombed front doors from the garage. Everything is hidden from the street, including the residents who call it home. “Parking requirements,” says Cole, “had created whole communities of new blank walls that faced other blank walls. I hated it.”

After Cole was elected mayor of Pasadena in 1992, he heard that the man who had been public works director for the city in the 1940s was buried in the basement beneath Cole’s office. “I would actually spend time wandering alone down there,” says Cole, “looking for the headstone. The parking meters this guy had ordered to be installed throughout the city were supposedly down there with him.” Cole never found the grave site; it was the career of the public works director that lay dead in the basement. Unlike other cities, Pasadena hadn’t installed street meters. “When this guy suggested they do so,” says Cole, “and then ordered them, the citizenry revolted. That was the end of him.”

So Cole, an untested mayor, decided to commit career suicide—he would be the first to install meters. And not just anywhere but in the city’s seediest business district, its skid row, a stroll for prostitutes that would soon be renamed Old Pasadena. Cole had chosen the area to install parking meters because it was ideal for conducting his own experiment: He wanted to attract merchants to the area, where the rent on the decaying buildings was low and the potential for foot traffic was high. Could meter revenue clean and repair Old Pasadena, then help police its streets? “There was, putting it politely, tremendous opposition,” says Cole. Shop owners barely hanging on told Cole he was crazy. In a large meeting with merchants, Cole said something that swayed them: Rather than fill city coffers, meter collections would go back to businesses in the form of new alleyways, sidewalk improvement, more trees, and police. “The moment I said that, one of my staff members kicked me under the table,” says Cole.

The area took off. The Gap moved in a block away from the old Le Sex Shoppe. Cole pushed his project further: Unlike other cities, Pasadena would not require businesses to build parking lots or garages. Two city-owned parking structures would rent spaces to merchants for $50 a month—a cost of $600 a year per space instead of the tens of thousands of dollars to construct one. Soon the meters were earning more than $1 million annually. Some $415,000 covered the city’s garage debt, while $700,000 went back to neighborhood improvement every year. People who once drove to Westwood on Saturday nights now visited Old Pasadena.

“If you had told people in 1990 that this switch would occur,” says Shoup, “you would have been considered insane.” There are many theories about why Westwood died, and Shoup has his own. “It’s a myth to say Westwood died because of one high-profile homicide in the 1980s,” he says, referring to the 1988 death of a Long Beach woman named Karen Toshima, killed in crossfire. “Westwood had an unbelievably high parking requirement—ten spaces for every 1,000 square feet of restaurant. Old Pasadena had none. Westwood had dangerous alleys, crumbing sidewalks. If you want to know why Old Pasadena succeeded Westwood, parking was a big part of the story.”

Cole had created the first Shoupista paradise: No parking requirements, parking meters where once there were none. His city grew rich off the notion—and nobody has tried it since. “For 5,000 years,” says Cole, “we built cities around people, and they worked well. For 50 years we’ve built them around the parking lot—a ridiculous use of land, of money, and an intrusion into the intimacy of human scale. Now we’ve painted ourselves into a corner. The saving grace is that the first 5,000 years might come back again.”

****

Parking had never crossed Shoup’s mind when he left Yale for L.A. in 1968—his focus was public finance and land-value theory. In 1975, he stumbled onto a master’s thesis by two USC students who had worked their way through school parking cars for a man named Rex Link. “Link,” says Shoup, “was annoyed that county workers were offered free parking downtown when federal workers had to pay. ” Link’s student employees proposed a study. “They found that 72 percent of county workers drove to work alone,” says Shoup, “but 60 percent of federal employees carpooled, took public transportation, or even walked. These were workers in the same professions, driving to the same location.” When forced to pay a practical value for their parking, drivers were twice as likely to carpool—traffic congestion was halved, carbon emissions were halved. “The more I thought of that,” says Shoup, “the more I thought there was a perfect storm here. No one can tell you why parking prices are set as they are. But when people pay comparatively little for something that’s expensive to produce, the result is collective irrational behavior.”

Choosing to study parking in 1975, on the other hand, was singular irrational behavior. “People thought I was nuts,” says Shoup. “Parking was a blind spot in universities.” Like his subject, Shoup is caught between urban planning and traffic engineering—a no-man’s-land. “Because Don came out of Yale trained as an economist,” says Richard Willson, a professor of urban planning at Cal Poly Pomona, “and looked at parking issues as an economic problem, he was never really welcomed into urban planning circles.” Few people Shoup worked with at UCLA had heard of the Parking Standards report, published by the Institute of Transportation Engineers, or the parking index report of the American Planning Association. Taken together, Shoup discovered, the two publications shaped the look of modern cities. The APA’s index lists 662 business types, along with suggestions for the number of parking spaces each structure should include. Urban planners, says Shoup, have no theory, use no hard data, when choosing parking requirements; they consult the manuals to decide. Every business imaginable is found within: Funeral parlors? A basic formula is eight parking spaces plus one for each hearse. Convents? One-tenth of a space per nun is fine. Adult bookstores? One space for every prospective patron plus one for the cashier holding the longest shift (no mention of the flasher in the alley). Public swimming pools? One space for every 2,500 gallons of water on the premises, chlorine included.

The figures are as precise as their origins are incomprehensible. Willson, who was a student of Shoup’s in the 1980s, says, “For 30 years parking was a number you looked up in the book—it’s magical the way these numbers spread.” He became fascinated by the office parks that proliferate along L.A. and Orange county freeways. “Parking requirements are a primary shaper of these landscapes,” says Willson. “The golden rule for office buildings has been four spaces for every 1,000 square feet. But where did that number come from?” Nobody knew, so Willson plotted a case study to gauge whether parking requirements connected to reality. He chose ten office parks and discovered that their peak occupancy rate was around 56 percent. Twice as many parking lots had been mandated by cities than was actually needed. “I interviewed the planners and the developers,” says Willson. “The planners would say, ‘It’s not our fault—the developers want that much.’ The developers would say, ‘We thought the planners knew what they were doing.’ ”

Parking mandates had been shuffling the look of L.A. neighborhoods for some time. Among the ugliest—or most charming, depending on your perspective—of apartment profiles, the 1950s dingbat was conceived as an answer to parking requirements. The dingbat offered sidewalk strollers the bewitching view of a cement “front yard” and several car trunks. Single-car garages, hidden in backyards and alleyways in the early 20th century, doubled in size by the 1970s and moved onto the front lawn once cities began to require two residential spaces for every house. Shopping centers and malls assembled seas of asphalt around their retail islands, not because developers wanted them that size but because cities did. During the 1960s and ’70s—the epoch of Southern California’s shopping center build-out—malls had to offer enough parking for every car that might show up around 2 p.m. on the second Saturday before Christmas. Since planners didn’t know how many cars would arrive, an estimate was made: four or five cars for every 1,000 square feet of mall space. That would mean devoting 50 percent more land to cars than to people.

Shoup is not opposed to all parking lots; he’s against cities requiring parking lots. “Would you require every home to come with a pool or every office to include a dining room because someone might want it?” asks Shoup. “Why not let developers build parking where the market demands it and charge its true value?” It’s a market-based utopian wager: If you ask drivers to pay the actual price of their parking at the Grove or Santa Monica Place or Disney Hall, what would they do? If the fair price of your parking space is $60, would you view your car differently? In Manhattan a small portion of the population owns cars—it’s too expensive to park them. L.A. has the highest density of parking spaces in the world. “You can’t have the number of cars we have in L.A. without our parking lots,” says Shoup. “And you can never create urban density with the parking lots we’ve built.” They make driving too easy.

L.A. sits on a mountain-size surplus of parking it doesn’t know what to do with. “For decades,” says Willson, “cities have asked urban planners, ‘How much parking do we need?’ keeping in mind that it should be free for everyone who wants it and there’s no mass transportation involved. Shoup is saying, ‘How much parking do you want for the city you desire to live in?’ ” San Francisco or New York might have ten times the parking each has now if they had buildings like 1100 Wilshire, where the first 15 floors are all garage. But the downtown areas of those cities won’t allow it.

L.A. mandates it. In Los Angeles we attend dinner parties and wish out loud for more pedestrian-friendly neighborhoods, increased urban density, more mass transportation, less congestion, less air pollution, less reliance on our cars—and cheap, abundant parking wherever we go. Shoup’s theories sound counterintuitive, even irrational, to people over 40. But there is a parking generation gap. “For people in my generation,” says Willson, who is 55, “people who grew up with free parking wherever they went, grasping what Shoup is saying can be really tough. But the young couples who live in my neighborhood on Mount Washington or my students who bike wherever they go? They get it instantly. They understand Shoup.”

Copyright Infringement and Enforcement in the US

2012-01-05T22:31:00.001-05:00

Library computers can block porn—but Wicca? ACLU says no

2012-01-04T00:00:00.000-05:00

By Nate Anderson

I work on occasion from my local public library, a wonderful spot with huge glass windows overlooking an attached park. The views are nice, the quiet is terrific, and the free WiFi is indispensable. But the Internet connectivity comes with limits, in the form of a content filter that periodically prevents me from accessing research materials. Infuriating, yes. But illegal?

The American Civil Liberties Union (ACLU) has just filed a complaint (PDF) on behalf of a Salem, Missouri resident named Anaka Hunter, who contends that the Salem public library is unconstitutionally blocking her ability to access information on "minority" religious views. Federal and state law both govern libraries in Missouri, which are generally ordered to block access to obscene online material and child pornography. But the Salem library allegedly goes far beyond the mandate.

The library's "Netsweeper" content filtering system can block a huge variety of material, from porn to P2P to "occult" to "criminal skills," but it's up to the institution to choose which content categories will get filtered. Hunter claims that while looking into Native American and Wiccan religious practices, she was repeatedly halted by the filter's "occult" and "criminal skills" categories. When she complained, she says that the library staff wasn't especially helpful. According to the ACLU complaint:

Hunter raised the issue of filtering again with [head librarian] Wofford and stated that she thought the filtering of the websites she sought to view was improper and the classification of Native American cultural and religious history and practices as the “occult” and “criminal skills” was misleading and derogatory.

Wofford responded that it was up to the filtering system which websites library patrons could view and that she only allows people to view blocked websites if it pertains to their job, if they are writing a paper, or if she determined that they otherwise have a legitimate reason to view the content.

Wofford additionally asserted that she had an “obligation” to call the “proper authorities” to report those who were attempting to access blocked sites if she thought they would misuse the information they were attempting to access.

Hunter then took her complaint to the library's board but didn't get much further.

Hunter attended a meeting of the Board of Trustees for the Salem Library on November 8, 2010. At the meeting, she voiced her concerns about the filtering and the policies, practices, and customs that block religious content based upon its viewpoint.

After Hunter described her experiences and outlined her complaints, a board member asked if Hunter whether she thought the Board or Library staff are prejudiced.
Hunter did not answer directly, responding simply that she thought the filtering was unfair.

A member of the Board responded that the Library’s Internet Content Filtering (“ICF”) system would not change, adding, “If that’s all, we have business to discuss.”

The blocklist included things like Wikipedia's page on "Wicca" (which currently notes that "This religion is AWESOME!!"), the official Wicca page (wicca.org), and the Encyclopedia of Death and Dying. The complaint notes that Christian discussions about pagan and occult practices were not blocked.

Hunter and the ACLU claim that these blocks go far beyond what is required by law, and they have "created a substantial budren on Plaintiff's access to speech protected by the First Amendment." In addition, the complaint charges that the government is "promoting and favoring some religious viewpoints over others."

In a statement, Hunter blasted the library. "It’s unbelievable that I should have to justify why I want to access completely harmless websites on the Internet simply because they discuss a minority viewpoint," she said. "It’s wrong and demeaning to deny access to this kind of information."

Florda man tortured... police cleared of wrongdoing.

2012-01-02T22:13:00.002-05:00

TAMPA - No doubt you've heard the adage: a picture is worth a thousand words. A picture of 62-year-old Nick Christie could be worth thousands of dollars when a jury sees it.

The photo shows the Ohio man restrained inside the Lee County Jail with his body covered in pepper spray.

"This photo is a picture of a man who is strapped to a chair naked inside a jail for hours with a hood over his face. That evokes thoughts of being tortured," says Cleveland-based lawyer Nick DiCello who represents the Christie family.

The photo, which was obtained by FOX 13's investigative unit, was taken in the final hours of Christie's life.

The District 21 Medical Examiner ruled his death was a homicide because he had been restrained and sprayed with pepper sprayed by law enforcement officers. But to this day, nobody has ever been charged with a crime, and the Lee County State Attorney cleared the sheriff's office of any wrong doing.

It's been more than two and a half years and his wife still can't accept what happened.

"I was shocked. This was something out of a horror movie," says Joyce Christie. She said her husband was depressed and was showing signs of erratic behavior a few days before leaving for Florida.

She called authorities and pleaded with them to take her husband to a hospital and be given his medications. Instead, he was taken to jail for disorderly intoxication.

Her lawsuit alleges he was pepper sprayed 10 times over a 48-hour period, at times while in a restraint chair.

Tom DePolis spent more than 30 years in law enforcement at the Tampa Police Department and Hillsborough County Sheriff's Office. He's seen first-hand the effects of pepper spray and knows its limitations. He can see no reason for deputies to repeatedly pepper spray Nick Christie since he was already in custody.

"The purpose is to temporarily incapacitate someone -- temporarily, that's the key word, so you can restrain them," says DePolis.

Monshay Gibbs was a deputy trainee at the jail at the time. In a video deposition, she testified that she thought the way Nick Christie was treated was excessive.

"He had a spit mask on and was naked," she said on the video while under oath. Gibbs testified that Christie pleaded with guards to take off the spit mask because he couldn't breathe. He later died at the hospital. His heart failed from the shock of the pepper spray. The Lee County Sheriffs Office declined to comment on our story because of Joyce Christie's wrongful death lawsuit, which is scheduled for trial the middle of next year.

Richard Stallman Was Right All Along

2012-01-02T22:09:00.000-05:00

by Thom Holwerda

Late last year, president Obama signed a law that makes it possible to indefinitely detain terrorist suspects without any form of trial or due process. Peaceful protesters in Occupy movements all over the world have been labelled as terrorists by the authorities. Initiatives like SOPA promote diligent monitoring of communication channels. Thirty years ago, when Richard Stallman launched the GNU project, and during the three decades that followed, his sometimes extreme views and peculiar antics were ridiculed and disregarded as paranoia - but here we are, 2012, and his once paranoid what-ifs have become reality.

Up until relatively recently, it's been easy to dismiss Richard Stallman as a paranoid fanatic, someone who lost touch with reality long ago. A sort of perpetual computer hippie, the perfect personification of the archetype of the unworldly basement-dwelling computer nerd. His beard, his hair, his outfits - in our visual world, it's simply too easy to dismiss him.

His views have always been extreme. His only computer is a Lemote Yeelong netbook, because it's the only computer which uses only Free software - no firmware blobs, no proprietary BIOS; it's all Free. He also refuses to own a mobile phone, because they're too easy to track; until there's a mobile phone equivalent of the Yeelong, Stallman doesn't want one. Generally, all software should be Free. Or, as the Free Software Foundation puts it:

As our society grows more dependent on computers, the software we run is of critical importance to securing the future of a free society. Free software is about having control over the technology we use in our homes, schools and businesses, where computers work for our individual and communal benefit, not for proprietary software companies or governments who might seek to restrict and monitor us.

I, too, disregarded Stallman as way too extreme. Free software to combat controlling and spying governments? Evil corporations out to take over the world? Software as a tool to monitor private communication channels? Right. Surely, Free and open source software is important, and I choose it whenever functional equivalence with proprietary solutions is reached, but that Stallman/FSF nonsense is way out there.

But here we are, at the start of 2012. Obama signed the NDAA for 2012, making it possible for American citizens to be detained indefinitely without any form of trial or due process, only because they are terrorist suspects. At the same time, we have SOPA, which, if passed, would enact a system in which websites can be taken off the web, again without any form of trial or due process, while also enabling the monitoring of internet traffic. Combine this with how the authorities labelled the Occupy movements - namely, as terrorists - and you can see where this is going.

In case all this reminds you of China and similarly totalitarian regimes, you're not alone. Even the Motion Picture Association of America, the MPAA, proudly proclaims that what works for China, Syria, Iran, and others, should work for the US. China's Great Firewall and similar filtering systems are glorified as workable solutions in what is supposed to be the free world.

The crux of the matter here is that unlike the days of yore, where repressive regimes needed elaborate networks of secret police and informants to monitor communication, all they need now is control over the software and hardware we use. Our desktops, laptops, tablets, smartphones, and all manner of devices play a role in virtually all of our communication. Think you're in the clear when communicating face-to-face? Think again. How did you arrange the meet-up? Over the phone? The web? And what do you have in your pocket or bag, always connected to the network?

This is what Stallman has been warning us about all these years - and most of us, including myself, never really took him seriously. However, as the world changes, the importance of the ability to check what the code in your devices is doing - by someone else in case you lack the skills - becomes increasingly apparent. If we lose the ability to check what our own computers are doing, we're boned.

That's the very core of the Free Software Foundation's and Stallman's beliefs: that proprietary software takes control away from the user, which can lead to disastrous consequences, especially now that we rely on computers for virtually everything we do. The fact that Stallman foresaw this almost three decades ago is remarkable, and vindicates his activism. It justifies 30 years of Free Software Foundation.

And, in 2012, we're probably going to need Free and open source software more than ever before. At the Chaos Computer Congress in Berlin late last year, Cory Doctorow held a presentation titled "The Coming War on General Purpose Computation". In it, Doctorow warns that the general purpose computer, and more specifically, user control over general purpose computers, is perceived as a threat to the establishment. The copyright wars? Nothing but a prelude to the real war.

"As a member of the Walkman generation, I have made peace with the fact that I will require a hearing aid long before I die, and of course, it won't be a hearing aid, it will be a computer I put in my body," Doctorow explains, "So when I get into a car - a computer I put my body into - with my hearing aid - a computer I put inside my body - I want to know that these technologies are not designed to keep secrets from me, and to prevent me from terminating processes on them that work against my interests."

And this is really the gist of it all. With computers taking care of things like hearing, driving, and more, we really can't afford to be locked out of them. We need to be able to peek inside of them and see what they're doing, to ensure we're not being monitored, filtered, or whatever. Only a short while ago I would've declared this as pure paranoia - but with all that's been going on recently, it's no longer paranoia. It's reality.

"Freedom in the future will require us to have the capacity to monitor our devices and set meaningful policy on them, to examine and terminate the processes that run on them, to maintain them as honest servants to our will, and not as traitors and spies working for criminals, thugs, and control freaks," Doctorow warns, "And we haven't lost yet, but we have to win the copyright wars to keep the Internet and the PC free and open. Because these are the materiel in the wars that are to come, we won't be able to fight on without them."

This is why you should support Android (not Google, but Android), even if you prefer the iPhone. This is why you should support Linux, even if you use Windows. This is why you should support Apache, even if you run IIS. There's going to be a point where being Free/open is no longer a fun perk, but a necessity.

And that point is approaching fast.

What Could Have Entered the Public Domain on January 1, 2012?

2012-01-01T22:55:00.000-05:00

Under the law that existed until 1978 . . . Works from 1955

Current US law extends copyright protection for 70 years after the date of the author’s death. (Corporate “works-for-hire” are copyrighted for 95 years after publication.) But prior to the 1976 Copyright Act (which became effective in 1978), the maximum copyright term was 56 years (an initial term of 28 years, renewable for another 28 years). Under those laws, works published in 1955 would be passing into the public domain on January 1, 2012.

What might you be able to read or print online, quote as much as you want, or translate, republish or make a play or a movie from? In this centennial year of the sinking of R.M.S. Titanic (April 15, 1912), how about Walter Lord’s A Night to Remember? Lord first published A Night to Remember in 1955. If we were still under the copyright laws that were in effect until 1978, A Night to Remember would be entering the public domain on January 1, 2012 (even assuming that Lord or his publisher had renewed the copyright). Under current copyright law, we’ll have to wait until 2051. This is because the copyright term for works published between 1950 and 1963 was extended to 95 years from the date of publication, so long as the works were published with a copyright notice and the term renewed (which is generally the case with famous works such as this). All of these works from 1955 won't enter the public domain until 2051.

Why Johnny Can't Read New Public Domain Books . . . .

What other works would be entering the public domain if we had the pre-1978 copyright laws? You might recognize some of the titles below.

Rudolf Flesch’s Why Johnny Can't Read: And What You Can Do About It
J.R.R. Tolkien’s The Return of the King, the final installment in his Lord of Rings trilogy
The Family of Man, Edward Steichen’s book of photographs showing the diversity and universality of human experience
Michihiko Hachiya’s Hiroshima Diary: The Journal of a Japanese Physician, August 8–September 30, 1945, translated by Warner Wells, md
Evelyn Waugh’s Officers and Gentlemen, the second book in his Sword of Honour trilogy
The first English translation of Thomas Mann’s last novel, Confessions of Felix Krull, Confidence Man: The Early Years (1954), by Denver Lindley
C.S. Lewis’ The Magician’s Nephew, the sixth volume his The Chronicles of Narnia
Vladimir Nabokov’s Lolita
Jerome Lawrence & Robert E. Lee’s play about the Scopes “Monkey Trial,” Inherit the Wind

Till the End of Eternity?

1955 was also a great year for science fiction fans — it marked the publication of classics such as Isaac Asimov’s The End of Eternity, Jack Finney’s The Body Snatchers (the basis of two classic Hollywood movies), and Arthur C. Clarke’s Earthlight. Instead of seeing these enter the public domain in 2012, when you would be free to create and share your new reimaginings of or homages to these works, we will have to wait until 2051—a date that itself may seem like science fiction.

The same is true for historical resources. It has been 150 years since the beginning of the United States Civil War (1861–65); under the pre-1978 copyright law, you could edit and distribute a wealth of materials from 1955 to teach and learn about the war, including Bruce Catton’s Banners at Shenandoah: A Story of Sheridan’s Fighting Calvary, Earl Schenck Miers’ The Web of Victory: Grant at Vicksburg, Fletcher Pratt’s The Civil War and Civil War in Pictures, and Katherine M. Jones’ collection Heroines of Dixie – Confederate Women Tell Their Story of War. But these remain copyrighted until 2051.

Other pieces of history may remain off limits as well. These range from the first issue of Sports Cars Illustrated (renamed Car and Driver) and the first issue of William F. Buckley’s National Review, to the May 9, 1955, episode of I Love Lucy featuring Harpo Marx and Lucille Ball and Elvis Presley’s first television appearance (on Louisiana Hayride, March 5, 1955), to artworks such as Pablo Picasso’s Don Quixote, Rene Magritte’s Masked Apples, and Ansel Adams’ Half Dome Blowing Snow, 1955.

The (Life Plus) 70 Year Itch . . .

Think of the movies from 1955 that would have become available this year. You could have shared clips online with your friends. You could have shown the full films in your local theater. You could have spliced and remixed and made documentaries about them. Instead, here are a few of the movies that we won’t see in the public domain for another 39 years:

The Seven Year Itch, directed by Billy Wilder; starring Marilyn Monroe and Tom Ewell
Lady and the Tramp, Walt Disney Productions’ classic animation
Mister Roberts, directed by John Ford; starring Henry Fonda, James Cagney, and Jack Lemmon
Alfred Hitchcock’s To Catch a Thief, starring Cary Grant and Grace Kelly
The thriller The Night of the Hunter, directed by Charles Laughton; starring Robert Mitchum and Shelley Winters
Two of James Dean’s three major motion pictures: East of Eden, directed by Elia Kazan and co-starring Raymond Massey and Julie Harris; and Rebel Without a Cause, directed by Nicholas Ray and co-starring Natlie Woods, Sal Mineo, and Jim Backus
Hollywood versions of major Broadway musicals such as Oklahoma! and Guys and Dolls
Richard III, Laurence Olivier’s film version of the Shakespeare play, co-starring Claire Bloom, Cedric Hardwicke, Nicholas Hannen, Ralph Richardson, and John Gielgud

Chained Melodies, and Molecules . . .

If you wanted to find guitar tabs or sheet music or record your own version of some of the great music of the 1950s, January 1, 2012, could have been a productive day for you under the old copyright laws — Unchained Melody (Hy Zaret & Alex North), Ain’t That a Shame (Antoine “Fats” Domino and Dave Bartholomew), Blue Suede Shoes (Carl Perkins), Folsom Prison Blues (Johnny Cash), The Great Pretender (Buck Ram), Maybellene (Chuck Berry, Russ Fratto, & Alan Freed), and Tutti Frutti (Richard Penniman (aka Little Richard), Dorothy LaBostrie, & Joe Lubin), would have all become available.

What if you were interested in scientific developments in 1955 (the year that Tim Berners-Lee, Steve Jobs, and Bill Gates were born)? Many copyrighted scientific journal articles about, for example, the synthesis of DNA- and RNA-like molecules, the effect of placebos, the experimental confirmation of the existence of the antiproton, fibre optics, or the synthesis of mendelevium remain behind paywalls (see here, here, here, here, and here.) (Not all scientific publishers work under this kind of copyright scheme. “Open Access” scientific publications, like those of the Public Library of Science, are under Creative Commons attribution licenses, meaning that they can be copied freely from the day they are published.)

The Public Domain Snatchers . . .

Most of the works highlighted here are famous — that is why we included them. And if that fame meant that the work was still being exploited commercially 28 years after its publication, the authors would probably renew the copyright. (This is true for many of the works featured on this page, though even a surprising percentage of successful works exhaust their commercial potential very quickly.) But we know from the Copyright Office that 85% of authors did not renew their copyrights (for books, the number is even higher — 93% did not renew), since most works exhaust their commercial value very quickly.

Under the law that existed until 1978 . . . Up to 85% of all copyrighted works from 1983 might have been entering the public domain on January 1, 2012.

That means that all these examples from 1955 are only the tip of the iceberg. If the pre-1978 law were still in effect, we could have seen 85% of the works created in 1983 enter the public domain on January 1, 2012. Imagine what that would mean to our archives, our libraries, our schools and our culture. Such works could be digitized, preserved, and made available for education, for research, for future creators. Instead, they will remain under copyright for decades to come, perhaps even into the next century. Think of the cultural harm that does. In addition, because most of these works are orphan works — works that are still presumably under copyright, but commercially unavailable and with no identifiable copyright holder — no one is benefiting from continued protection, while the works remain both commercially unavailable and culturally off limits. (You can read more about the current costs associated with orphan works here and here.) It seems that The Public Domain Snatchers is not the stuff of fiction.

1 Many works published in 1955 are already in the public domain because the copyright holder did not comply with notice, renewal, or other copyright formalities. However, tracking down this information can be difficult (you can read just one of many illustrative examples collected by the Copyright Office here). Therefore, users often have to presume these works are copyrighted or risk a lawsuit (only works published before 1923 are conclusively in the public domain). You can read more about copyright terms from this excellent chart and from the US Copyright Office’s guide.
It is also difficult to determine whether foreign works are in the public domain. Generally speaking, as a result of international agreements, foreign works published after 1923 are still under copyright in the US as long as one of the following is true: they were published in compliance with US formalities, they were still copyrighted in their home countries as of 1996, or they were then published in the US within 30 days of publication abroad. You can learn more about copyright terms for foreign works from the Copyright Office guide here.

Rational Flow

2011-12-27T12:51:00.000-05:00

Smoke Screening

2011-12-24T00:32:00.002-05:00

As you stand in endless lines this holiday season, here’s a comforting thought: all those security measures accomplish nothing, at enormous cost. That’s the conclusion of Charles C. Mann, who put the T.S.A. to the test with the help of one of America’s top security experts.

By Charles C. Mann

Not until I walked with Bruce Schneier toward the mass of people unloading their laptops did it occur to me that it might not be possible for us to hang around unnoticed near Reagan National Airport’s security line. Much as upscale restaurants hang mug shots of local food writers in their kitchens, I realized, the Transportation Security Administration might post photographs of Schneier, a 48-year-old cryptographer and security technologist who is probably its most relentless critic. In addition to writing books and articles, Schneier has a popular blog; a recent search for “TSA” in its archives elicited about 2,000 results, the vast majority of which refer to some aspect of the agency that he finds to be ineffective, invasive, incompetent, inexcusably costly, or all four.

As we came by the checkpoint line, Schneier described one of these aspects: the ease with which people can pass through airport security with fake boarding passes. First, scan an old boarding pass, he said—more loudly than necessary, it seemed to me. Alter it with Photoshop, then print the result with a laser printer. In his hand was an example, complete with the little squiggle the T.S.A. agent had drawn on it to indicate that it had been checked. “Feeling safer?” he asked.

Ten years ago, 19 men armed with utility knives hijacked four airplanes and within a few hours killed nearly 3,000 people. At a stroke, Americans were thrust into a menacing new world. “They are coming after us,” C.I.A. director George Tenet said of al-Qaeda. “They intend to strike this homeland again, and we better get about the business of putting the right structure in place as fast as we can.”

The United States tried to do just that. Federal and state governments embarked on a nationwide safety upgrade. Checkpoints proliferated in airports, train stations, and office buildings. A digital panopticon of radiation scanners, chemical sensors, and closed-circuit television cameras audited the movements of shipping containers, airborne chemicals, and ordinary Americans. None of this was or will be cheap. Since 9/11, the U.S. has spent more than $1.1 trillion on homeland security.

To a large number of security analysts, this expenditure makes no sense. The vast cost is not worth the infinitesimal benefit. Not only has the actual threat from terror been exaggerated, they say, but the great bulk of the post-9/11 measures to contain it are little more than what Schneier mocks as “security theater”: actions that accomplish nothing but are designed to make the government look like it is on the job. In fact, the continuing expenditure on security may actually have made the United States less safe.

The first time I met Schneier, a few months after 9/11, he wanted to bet me a very expensive dinner that the United States would not be hit by a major terrorist attack in the next 10 years. We were in Washington, D.C., visiting one of the offices of Counterpane Internet Security, the company he had co-founded in 1999. (BT, the former British Telecom, bought Counterpane seven years later; officially, Schneier is now BT’s chief security technology officer.) The bet seemed foolhardy to me. Defense Secretary Donald Rumsfeld had just told The Washington Times that al-Qaeda was dispersing its killers all over the world.

From an airplane-hijacking point of view, Schneier said, al-Qaeda had used up its luck. Passengers on the first three 9/11 flights didn’t resist their captors, because in the past the typical consequence of a plane seizure had been “a week in Havana.” When the people on the fourth hijacked plane learned by cell phone that the previous flights had been turned into airborne bombs, they attacked their attackers. The hijackers were forced to crash Flight 93 into a field. “No big plane will ever be taken that way again, because the passengers will fight back,” Schneier said. Events have borne him out. The instigators of the two most serious post-9/11 incidents involving airplanes— the “shoe bomber” in 2001 and the “underwear bomber” in 2009, both of whom managed to get onto an airplane with explosives—were subdued by angry passengers.

Schneier’s sanguine views had little resonance at a time when the fall of the twin towers was being replayed nightly on the news. Two months after 9/11, the Bush administration created the Transportation Security Agency, ordering it to hire and train enough security officers to staff the nation’s 450 airports within a year. Six months after that, the government vastly expanded the federal sky-marshal program, sending thousands of armed lawmen to ride planes undercover. Meanwhile, the T.S.A. steadily ratcheted up the existing baggage-screening program, banning cigarette lighters from carry-on bags, then all liquids (even, briefly, breast milk from some nursing mothers). Signs were put up in airports warning passengers about specifically prohibited items: snow globes, printer cartridges. A color-coded alert system was devised; the nation was placed on “orange alert” for five consecutive years. Washington assembled a list of potential terror targets that soon swelled to 80,000 places, including local libraries and miniature-golf courses. Accompanying the target list was a watch list of potential suspects that had grown to 1.1 million names by 2008, the most recent date for which figures are available. Last year, the Department of Homeland Security, which absorbed the T.S.A. in 2003, began deploying full-body scanners, which peer through clothing to produce nearly nude images of air passengers.

Bruce Schneier’s exasperation is informed by his job-related need to spend a lot of time in Airportland. He has 10 million frequent-flier miles and takes about 170 flights a year; his average speed, he has calculated, is 32 miles and hour. “The only useful airport security measures since 9/11,” he says, “were locking and reinforcing the cockpit doors, so terrorists can’t break in, positive baggage matching”—ensuring that people can’t put luggage on planes, and then not board them —“and teaching the passengers to fight back. The rest is security theater.”

Remember the fake boarding pass that was in Schneier’s hand? Actually, it was mine. I had flown to meet Schneier at Reagan National Airport because I wanted to view the security there through his eyes. He landed on a Delta flight in the next terminal over. To reach him, I would have to pass through security. The day before, I had downloaded an image of a boarding pass from the Delta Web site, copied and pasted the letters with Photoshop, and printed the results with a laser printer. I am not a photo-doctoring expert, so the work took me nearly an hour. The T.S.A. agent waved me through without a word. A few minutes later, Schneier deplaned, compact and lithe, in a purple shirt and with a floppy cap drooping over a graying ponytail.

The boarding-pass problem is hardly the only problem with the checkpoints. Taking off your shoes is next to useless. “It’s like saying, Last time the terrorists wore red shirts, so now we’re going to ban red shirts,” Schneier says. If the T.S.A. focuses on shoes, terrorists will put their explosives elsewhere. “Focusing on specific threats like shoe bombs or snow-globe bombs simply induces the bad guys to do something else. You end up spending a lot on the screening and you haven’t reduced the total threat.”

As I waited at security with my fake boarding pass, a T.S.A. agent had darted out and swabbed my hands with a damp, chemically impregnated cloth: a test for explosives. Schneier said, “Apparently the idea is that al-Qaeda has never heard of latex gloves and wiping down with alcohol.” The uselessness of the swab, in his view, exemplifies why Americans should dismiss the T.S.A.’s frequent claim that it relies on “multiple levels” of security. For the extra levels of protection to be useful, each would have to test some factor that is independent of the others. But anyone with the intelligence and savvy to use a laser printer to forge a boarding pass can also pick up a stash of latex gloves to wear while making a bomb. From the standpoint of security, Schneier said, examining boarding passes and swabbing hands are tantamount to performing the same test twice because the person you miss with one test is the same person you'll miss with the other.

After a public outcry, T.S.A. officers began waving through medical supplies that happen to be liquid, including bottles of saline solution. “You fill one of them up with liquid explosive,” Schneier said, “then get a shrink-wrap gun and seal it. The T.S.A. doesn’t open shrink-wrapped packages.” I asked Schneier if he thought terrorists would in fact try this approach. Not really, he said. Quite likely, they wouldn’t go through the checkpoint at all. The security bottlenecks are regularly bypassed by large numbers of people—airport workers, concession-stand employees, airline personnel, and T.S.A. agents themselves (though in 2008 the T.S.A. launched an employee-screening pilot study at seven airports). “Almost all of those jobs are crappy, low-paid jobs,” Schneier says. “They have high turnover. If you’re a serious plotter, don’t you think you could get one of those jobs?”

The full-body-scanner program—some 1,800 scanners operating in every airport in the country—was launched in response to the “underwear bomber” incident on Christmas Day in 2009, when a Nigerian Muslim hid the plastic explosive petn in his briefs and tried to detonate it on a flight from Amsterdam to Detroit. It has an annual price tag of $1.2 billion. The scanners cannot detect petn directly; instead they look for suspicious bulges under clothing. Because petn is a Silly Putty–like material, it can be fashioned into a thin pancake. Taped flat to the stomach, the pancake is invisible to scanning machines. Alternatively, attackers could stick gum-size wads of the explosive in their mouths, then go through security enough times to accumulate the desired amount.

Staffing the airport checkpoints, at least in theory, are “behavioral detection officers,” supposedly trained in reading the “facial microexpressions” that give away terrorists. It is possible that they are effective, Schneier says—nobody knows exactly what they do. But U.S. airlines carried approximately 700 million passengers in 2010. In the last 10 years, there have been 20 known full-fledged al-Qaeda operatives who flew on U.S. planes (the 9/11 hijackers and the underwear bomber, who was given explosives by a Yemeni al-Qaeda affiliate). Picking the right 20 out of 700 million is simply not possible, Schneier says.

After the airport checkpoint, an additional layer of security is provided, in theory, by air marshals. At an annual cost of about $1.2 billion, as many as 4,000 plainclothes police ride the nation’s airways—usually in first class, so that they can monitor the cockpit. John Mueller, co-author of Terror, Security, and Money, a great book from which I drew much information for this article, says it's a horrible job. “You sit there and fly and you can’t even drink or listen to music, because you can’t have headphones on. You have to stay awake. You are basically just sitting there, day after day.” Unsurprisingly, there’s a lot of turnover—“you’re constantly training people, which is expensive.” Worse, the program has had no measurable benefit. Air marshals have not saved a single life, although one of them did shoot a deranged passenger a few years ago.

Has the nation simply wasted a trillion dollars protecting itself against terror? Mostly, but perhaps not entirely. “Most of the time we assess risk through gut feelings,” says Paul Slovic, a psychology professor at the University of Oregon who is also the president of Decision Research, a nonprofit R&D organization. “We’re not robots just looking at the numbers.” Confronted with a risk, people ask questions: Is this a risk that I benefit from taking, as when I get in a car? Is it forced on me by someone else, as when I am exposed to radiation? Are the potential consequences catastrophic? Is the impact immediate and observable, or will I not know the consequences until much later, as with cancer? Such questions, Slovic says, “reflect values that are sometimes left out of the experts’ calculations.”

Security theater, from this perspective, is an attempt to convey a message: “We are doing everything possible to protect you.” When 9/11 shattered the public’s confidence in flying, Slovic says, the handful of anti-terror measures that actually work—hardening the cockpit door, positive baggage matching, more-effective intelligence—would not have addressed the public’s dread, because the measures can’t really be seen. Relying on them would have been the equivalent of saying, “Have confidence in Uncle Sam,” when the problem was the very loss of confidence. So a certain amount of theater made sense. Over time, though, the value of the message changes. At first the policeman in the train station reassures you. Later, the uniform sends a message: train travel is dangerous. “The show gets less effective, and sometimes it becomes counterproductive.”

Terrorists will try to hit the United States again, Schneier says. One has to assume this. Terrorists can so easily switch from target to target and weapon to weapon that focusing on preventing any one type of attack is foolish. Even if the T.S.A. were somehow to make airports impregnable, this would simply divert terrorists to other, less heavily defended targets—shopping malls, movie theaters, churches, stadiums, museums. The terrorist’s goal isn’t to attack an airplane specifically; it’s to sow terror generally. “You spend billions of dollars on the airports and force the terrorists to spend an extra $30 on gas to drive to a hotel or casino and attack it,” Schneier says. “Congratulations!”

What the government should be doing is focusing on the terrorists when they are planning their plots. “That’s how the British caught the liquid bombers,” Schneier says. “They never got anywhere near the plane. That’s what you want—not catching them at the last minute as they try to board the flight.”

To walk through an airport with Bruce Schneier is to see how much change a trillion dollars can wreak. So much inconvenience for so little benefit at such a staggering cost. And directed against a threat that, by any objective standard, is quite modest. Since 9/11, Islamic terrorists have killed just 17 people on American soil, all but four of them victims of an army major turned fanatic who shot fellow soldiers in a rampage at Fort Hood. (The other four were killed by lone-wolf assassins.) During that same period, 200 times as many Americans drowned in their bathtubs. Still more were killed by driving their cars into deer. The best memorial to the victims of 9/11, in Schneier’s view, would be to forget most of the “lessons” of 9/11. “It’s infuriating,” he said, waving my fraudulent boarding pass to indicate the mass of waiting passengers, the humming X-ray machines, the piles of unloaded computers and cell phones on the conveyor belts, the uniformed T.S.A. officers instructing people to remove their shoes and take loose change from their pockets. “We’re spending billions upon billions of dollars doing this—and it is almost entirely pointless. Not only is it not done right, but even if it was done right it would be the wrong thing to do.”

2011 in Review: The Year Secrecy Jumped the Shark

2011-12-24T00:28:00.002-05:00

As the year draws to a close, EFF is looking back at the major trends influencing digital rights in 2011 and discussing where we are in the fight for a free expression, innovation, fair use, and privacy. The government has been using its secrecy system in absurd ways for decades, but 2011 was particularly egregious. Here are a few examples:

Government report concludes the government classified 77 million documents in 2010, a 40% increase on the year before. The number of people with security clearances exceeded 4.2. million, more people than the city of Los Angeles.
Government tells Air Force families, including their kids, it’s illegal to read WikiLeaks. The month before, the Air Force barred its service members fighting abroad from reading the New York Times—the country’s Paper of Record.
Lawyers for Guantanamo detainees were barred from reading the WikiLeaks Guantanamo files, despite their contents being plastered on the front page of the New York Times.

President Obama refuses to say the words “drone” or “C.I.A” despite the C.I.A. drone program being on the front pages of the nation’s newspapers every day.

CIA refuses to release even a single passage from its center studying global warming, claiming it would damage national security. As Secrecy News' Steven Aftergood said, “That’s a familiar song, and it became tiresome long ago.”

The CIA demands former FBI agent Ali Soufan censor his book criticizing the CIA’s post 9/11 interrogation tactics of terrorism suspects. Much of the material, according to the New York Times, “has previously been disclosed in open Congressional hearings, the report of the national commission on 9/11 and even the 2007 memoir of George J. Tenet, the former C.I.A. director.”

Department of Homeland Security has become so bloated with secrecy that even the “office's budget, including how many employees and contractors it has, is classified,” according to the Center for Investigative reporting. Yet their intelligence reports “produce almost nothing you can’t find on Google,” said a former undersecretary.

Headline from the Wall Street Journal in September: “Anonymous US officials push open government.”
NSA declassified a 200 year old report which they said demonstrated its “commitment to meeting the requirements” of President Obama’s transparency agenda. Unfortunately, the document “had not met the government's own standards for classification in the first place,” according to J. William Leonard, former classification czar.

Government finally declassifies the Pentagon Papers 40 years after they appeared on the front page of the New York Times and were published by the House’s Armed Services Committee.
Secrecy expert Steve Aftergood concludes after two years “An Obama Administration initiative to curb overclassification of national security information… has produced no known results to date.”

President Obama accepts a transparency award…behind closed doors.

Government attorneys insist in court they can censor a book which was already published and freely available online.

Department of Justice refuses to release its interpretation of section 215 of the Patriot Act, a public law.

U.S. refuses to release its legal justification for killing an American citizen abroad without a trial, despite announcing the killing in a press conference.
U.S. won’t declassify legal opinion on 2001’s illegal warrantless wiretapping program.

National Archive announced it was working on declassifying “a backlog of nearly 400 million pages of material that should have been declassified a long time ago.”

The CIA refused to declassify Open Source Works, “which is the CIA’s in-house open source analysis component, is devoted to intelligence analysis of unclassified, open source information” according to Steve Aftergood.

Twenty-three year State Department veteran gets his security clearance revoked for linking to a WikiLeaks document on his blog.

The ACLU sued asking the State Department to declassify 23 cables out of the more than 250,000 released by WikiLeaks. After more than a year, the government withheld 12 in their entirety. You can see the other 11, heavily redacted, next to the unredacted copies on the ACLU website.

The ACLU said it sued the State Department in part to show the "absurdity of the US secrecy regime." Mission accomplished.

The Homeland Security Snow-Cone Machine

2011-12-24T00:25:00.000-05:00

Every time you think "homeland security" can't get more ridiculous, it gets more ridiculous.

There have been plenty of examples already showing that large amounts of your tax money supposedly earmarked for the "War on Terror" end up getting used for purposes that are, shall we say, less than mission-critical. Back in 2006, we learned that $25 million in homeland-security money had been handed out in just one grant program with no controls at all, which resulted in $77,000 going to local fire departments to fund "puppet and clown shows," and another $22,000 for an "educational robot." An Indiana county got in trouble for using its $300,000 Electronic Emergency Message Boards, intended to notify the public about things like evacuation routes, to advertise the volunteer fire department's charity fish fry. This is just the local stuff, not counting the umpteen billions spent on naked scanners that don't do any good.

Also, the war in Iraq.

Still, it is something special when a homeland-security grant is used to buy a snow-cone machine.

Actually, thirteen snow-cone machines, one for every county in Michigan Homeland Security Region 6. Region 6, as you almost certainly don't know, covers 13 counties in western Michigan including Clare, Isabella, Montcalm, Muskegon, Newaygo, and other areas also near the very top of al-Qaeda's hit list. According to the Greenville Daily News, the Board of Commissioners in Montcalm noted that they had been presented with a snow-cone machine, and while they probably appreciated this unexpected gift, they did inquire as to whether the $900 treat-maker was an appropriate use of homeland-security dollars. (Apparently, another county - anonymous for now - requested the machine, and somebody thought that was such a good idea that all 13 counties got one.)

The Daily News was able to confirm that the the snow-cone machines were funded by a grant from the Michigan Homeland Security Program, but nobody seems to have had a good answer for the "appropriate use" question, surprisingly enough. Two ways to go in that situation: (1) admit it was a mistake or a bad decision, and fix it; or (2) insist that yes, there is an entirely valid purpose for incorporating an Arctic Blast Sno-Cone machine into your anti-terrorism plan.

“It is used to attract people so they can be educated and prepared for homeland security,” [Sandeep] Dey said from his office in Muskegon. “More importantly, they (homeland security officials) felt in a medical emergency the machine was capable of making ice packs which could be used for medical purposes.”

You didn't really think anybody would pick Option One, did you?

Dey is the executive director of the West Michigan Shoreline Regional Development Commission, which oddly is in charge of Homeland Security Region 6. He did not dream up these explanations just now, though, because they are the same ones contained in the state grant program's "Allowable Cost Justification" form that was filed back in May. According to the Daily News, that document (which sadly was not available online) says the machines would be used to "make ice to prevent heat-related illnesses during emergencies, treat injuries and provide snow cones as an outreach at promotional events."

The director did try to do a little damage control, apparently feeling a little heat-related stress himself at that point. "He said the ... request would not have been granted by itself, but was approved because it came with other homeland security equipment." I'm not sure what that means. Maybe with every dozen radiation detectors you buy, they throw in a free snow-cone machine? Dey also contended, evidently, that they are budget-conscious and making the hard choices, saying that "one county requested a popcorn machine, but that request was denied." Because that would just be ridiculous.

"I don't like the term 'snow-cone machine,' because it sounds horrible," said Montcalm County Emergency Services Director David Feldpausch about the term that appears right on the side of the machine. "When you look at it as an ice-shaving machine and its purpose, it makes a little more sense." With Option Two thus in full effect, Feldpausch had one more argument. According to the report, "Feldpausch [also] said the machine could be useful at the scene of a large fire."

To be fair, I don't think he meant to be taken literally there. Obviously you'd have to combine the full power of all 13 Arctic Blast Ice-Shaving Anti-Terror Machines to deal with a really large fire. The good news is that Region 6 is now equipped to handle that. And terrorism.

For Christmas, Your Government Will Explain Why It's Legal to Kill You

2011-12-22T17:39:00.002-05:00

Ha! Just kidding! It won't tell you that. That's classified!

Plaintiffs The New York Times Company, Charlie Savage, and Scott Shane (jointly, "NYT"), by their undersigned attorney, allege for their Complaint:
1. This is an action under the Freedom of Information Act ("FOIA") ... seeking the production of agency records improperly withheld by Defendant United States Department of Justice ("DOJ") in response to requests properly made by Plaintiffs.
***
4. Given the questions surrounding the legality of the practice [of "targeted killing"] under both U.S. and international law, notable legal scholars, human rights activists, and current and former government officials [i.e., Democrats and Republicans] have called for the government to disclose its legal analysis justifying the use of targeted lethal force, especially as it applies to American citizens.
***
11. Both before and after the death of [Anwar] al-Awlaki [who was blown up in Yemen], NYT duly filed FOIA requests seeking memoranda that detail the legal analysis behind [blowing people up]. To date, DOJ has refused to release any such memoranda or any segregable portions, claiming them to be properly classified and privileged and in respect to certain memoranda has declined to say whether they in fact exist.
***
35. On September 30, 2011, the Washington Post described a [DOJ] "secret memorandum authorizing the legal targeting" of al-Awlaki, an American citizen accused of coordinating the Al-Qaeda operations in the Arabian peninsula. The article said that officials refused to disclose the exact legal analysis" such as "how they considered any Fifth Amendment right to due process." It also quoted a "former senior intelligence official" as saying the C.I.A. "would not have killed an American without such a written opinion."
***
44. On October 7, 2011, Mr. Savage submitted a FOIA request [to] DOJ OLC seeking a copy of "all Office of Legal Counsel memorandums analyzing the circumstances under which it would be lawful for United States armed forces or intelligence community assets to target for killing a United States citizen who is deemed to be a terrorist."
45. By letter dated October 27, 2011, [DOJ] denied Mr. Savage's request.

Summary:

The government dropped a bomb on a U.S. citizen,
who, though a total dick and probably a criminal, may have been engaged only in propaganda,
which, though despicable, is generally protected by the First Amendment;
it did so without a trial or even an indictment (that we know of),
based at least in part on evidence it says it has but won't show anyone,
and on a legal argument it has apparently made but won't show anyone,
and the very existence of which it will not confirm or deny;
although don't worry, because the C.I.A. would never kill an American without having somebody do a memo first;
and this is the "most transparent administration ever";
currently run by a Nobel Peace Prize winner.

Merry Christmas!

Keeping you safe from cupcakes because they contain a "gel"

2011-12-22T17:24:00.002-05:00

Rebecca writes,

At Las Vegas International Airport, TSA supervisor [REDACTED] is keeping travelers safe from the terror of delicious cupcakes-in-a-jar. I learned this firsthand earlier today, when I put myself and my fellow travelers at risk by attempting to travel with one.
The agent who first found my dangerously delectable snack consulted [REDACTED] about it just barely within my earshot. He responded hesitantly at first, saying that he was "not sure"--and "with the holidays coming, it's getting harder and harder." When he finally decided my treat was a no-go, I asked to speak with him directly, and he asserted that the frosting on this red velvet cupcake is "gel-like" enough to constitute a liquid, in part because it "conforms to its container." Also: it "should have been in a zip-lock." At this, I offered to scoop my dangerously conformist cupcake out of its jar and place it in a zip-lock bag, where it could mush about to its heart's content; but Agent [REDACTED] wisely refused. After all, the jar in all its tasty glory "clearly contains more than 3 ounces of total contents," he said.

I then explained to [REDACTED] that I'd been allowed to bring cupcakes-in-jars through Boston's Logan airport on my outbound flight with no problem (the TSA agent there had exclaimed, "These look delicious!"). To this logic, [REDACTED] responded, "If Boston had done their job right in the first place, we wouldn't be having this conversation right now." (Take that, Boston!)

CLEARLY [REDACTED] is in the right, because unbeknownst to him, when I had previously opened one of these marvelous cupcakes on the flight from Boston, everyone's safety was jeopardized. There was pandemonium among my hunger-crazed fellow travelers: Everybody wanted one. (Just like [REDACTED], who probably ate my cupcake on his next break.)

Don't Break the Internet!

2011-12-22T12:02:00.000-05:00

by Mark Lemley, David S. Levine, & David G. Post

Mark Lemley is the William H. Neukom Professor at Stanford Law School
David Levine is an Assistant Professor at Elon University School of Law
David Post is a Professor at Beasley School of Law, Temple University

Two bills now pending in Congress—the PROTECT IP Act of 2011 (Protect IP) in the Senate and the Stop Online Piracy Act (SOPA) in the House—represent the latest legislative attempts to address a serious global problem: large-scale online copyright and trademark infringement. Although the bills differ in certain respects, they share an underlying approach and an enforcement philosophy that pose grave constitutional problems and that could have potentially disastrous consequences for the stability and security of the Internet’s addressing system, for the principle of interconnectivity that has helped drive the Internet’s extraordinary growth, and for free expression.

To begin with, the bills represent an unprecedented, legally sanctioned assault on the Internet’s critical technical infrastructure. Based upon nothing more than an application by a federal prosecutor alleging that a foreign website is “dedicated to infringing activities,” Protect IP authorizes courts to order all U.S. Internet service providers, domain name registries, domain name registrars, and operators of domain name servers—a category that includes hundreds of thousands of small and medium-sized businesses, colleges, universities, nonprofit organizations, and the like—to take steps to prevent the offending site’s domain name from translating to the correct Internet protocol address. These orders can be issued even when the domains in question are located outside of the United States and registered in top-level domains (e.g., .fr, .de, or .jp) whose operators are themselves located outside the United States; indeed, some of the bills’ remedial provisions are directed solely at such domains.

Directing the remedial power of the courts towards the Internet’s core technical infrastructure in this sledgehammer fashion has impact far beyond intellectual property rights enforcement—it threatens the fundamental principle of interconnectivity that is at the very heart of the Internet. The Internet’s Domain Name System (DNS) is a foundational block upon which the Internet has been built and upon which its continued functioning critically depends; it is among a handful of protocols upon which almost every other protocol, and countless Internet applications, rely to operate smoothly. Court-ordered removal or replacement of entries from the series of interlocking databases that reside in domain name servers and domain name registries around the globe undermines the principle of domain name universality—the principle that all domain name servers, wherever they may be located across the network, will return the same answer when queried with respect to the Internet address of any specific domain name. Much Internet communication, and many of the thousands of protocols and applications that together provide the platform for that communication, are premised on this principle.

Mandated court-ordered DNS filtering will also have potentially catastrophic consequences for DNS stability and security. It will subvert efforts currently underway—and strongly supported by the U.S. government—to build more robust security protections into the DNS protocols. In the words of a number of leading technology experts, several of whom have been intimately involved in the creation and continued evolution of the DNS for decades:

Mandated DNS filtering would be minimally effective and would present technical challenges that could frustrate important security initiatives. Additionally, it would promote development of techniques and software that circumvent use of the DNS. These actions would threaten the DNS’s ability to provide universal naming, a primary source of the Internet’s value as a single, unified, global communications network. . . . DNS filtering will be evaded through trivial and often automated changes through easily accessible and installed software plugins. Given this strong potential for evasion, the long-term benefits of using mandated DNS filtering to combat infringement seem modest at best.[1]

Indeed, this approach could actually have an effect directly contrary to what its proponents intend: if large swaths of websites are cut out of the Internet addressing system, those sites—and the users who want to reach them—may well gravitate towards alternative, unregulated domain name addressing systems, making it even harder for governments to exercise their legitimate regulatory role in Internet activities.

The bills take aim not only at the Internet’s core technical infrastructure, but at its economic and commercial infrastructure as well. Credit card companies, banks, and other financial institutions could be ordered to “prevent, prohibit, or suspend” all dealings with the site associated with the domain name. Online advertisers could be ordered to cease providing advertising services to the site associated with the domain name. Search engine providers could be ordered to “remove or disable access to the Internet site associated with the domain name,” and to disable all hypertext links to the site.

These drastic consequences would be imposed against persons and organizations outside of the jurisdiction of the U.S. courts by virtue of the fiction that these prosecutorial actions are proceedings in rem, in which the “defendant” is not the operator of the site but the domain name itself. Both bills suggest that these remedies can be meted out by courts after nothing more than ex parte proceedings—proceedings at which only one side (the prosecutor or even a private plaintiff) need present evidence and the operator of the allegedly infringing site need not be present nor even made aware that the action was pending against his or her “property.”

This not only violates basic principles of due process by depriving persons of property without a fair hearing and a reasonable opportunity to be heard, it also constitutes an unconstitutional abridgement of the freedom of speech protected by the First Amendment. The Supreme Court has made it abundantly clear that governmental action suppressing speech, if taken prior to an adversary proceeding and subsequent judicial determination that the speech in question is unlawful,[2] is a presumptively unconstitutional “prior restraint.” In other words, it is the “most serious and the least tolerable infringement on First Amendment rights,”[3] permissible only in the narrowest range of circumstances. The Constitution requires a court “to make a final determination” that the material in question is unlawful “after an adversary hearing before the material is completely removed from circulation.”[4]

The procedures outlined in both bills fail this fundamental constitutional test. Websites can be “completely removed from circulation”—rendered unreachable by, and invisible to, Internet users in the United States and abroad—immediately upon application by the government, without any reasonable opportunity for the owner or operator of the website in question to be heard or to present evidence on his or her own behalf. This falls far short of what the Constitution requires before speech can be eliminated from public circulation.

As serious as these infirmities are, SOPA, the House’s bill, builds upon them, enlarges them, and makes them worse. Under SOPA, IP rights holders can proceed vigilante-style against allegedly offending sites, without any court hearing or any judicial intervention or oversight whatsoever. For example, SOPA establishes a scheme under which an IP rights holder need only notify credit card companies of the facts supporting its “good faith belief” that an identified Internet site is “primarily designed or operated for the purpose of” infringement. The recipients of that notice will then have five days to cease doing business with the specified site by taking “technically feasible and reasonable” steps to prevent it “from completing payment transactions” with customers. And all of this occurs based upon a notice delivered by the rights holder, which no neutral third party has even looked at, let alone adjudicated on the merits. If they get the assistance of a court, IP owners can also prevent other companies from “making available advertisements” to the site, and the government can prevent search engines from pointing to that site.

These bills, and the enforcement philosophy that underlies them, represent a dramatic retreat from this country’s tradition of leadership in supporting the free exchange of information and ideas on the Internet. At a time when many foreign governments have dramatically stepped up their efforts to censor Internet communications, these bills would incorporate into U.S. law a principle more closely associated with those repressive regimes: a right to insist on the removal of content from the global Internet, regardless of where it may have originated or be located, in service of the exigencies of domestic law.

United States law has long allowed Internet intermediaries to focus on empowering communications by and among users, free from the need to monitor, supervise, or play any other gatekeeping or policing role with respect to those communications. Requiring Internet service providers, website operators, search engine providers, credit card companies, banks, Internet advertisers, and others to block access to websites because of their content would constitute a dramatic retreat from that important policy. Laws protecting Internet intermediaries from liability for content on the Internet are responsible for transforming the Internet into the revolutionary communications medium that it is today. They reflect a policy that has not only helped make the United States the world leader in a wide range of Internet-related industries, but that has also enabled the Internet’s uniquely decentralized structure to serve as a global platform for innovation, speech, collaboration, civic engagement, and economic growth. These bills would undermine that leadership and dramatically diminish the Internet’s capability as a communications medium. As Secretary of State Hillary Clinton noted last year:

[T]he new iconic infrastructure of our age is the internet. Instead of division, it stands for connection. But even as networks spread to nations around the globe, virtual walls are cropping up in place of visible walls. . . . Some countries have erected electronic barriers that prevent their people from accessing portions of the world’s networks. They’ve expunged words, names, and phrases from search engine results. They have violated the privacy of citizens who engage in non-violent political speech. . . . With the spread of these restrictive practices, a new information curtain is descending across much of the world.[5]

It would be not just ironic, but tragic, were the United States to join the ranks of these repressive and restrictive regimes, erecting our own “virtual walls” to prevent people from accessing portions of the world’s networks. Passage of these bills will compromise our ability to defend the principle of the single global Internet—the Internet that looks the same to, and allows free and unfettered communication between, users located in Boston, Bucharest, and Buenos Aires, free of locally imposed censorship regimes. As such, it may represent the biggest threat to the Internet in its history.

Copyright and trademark infringement on the Internet is a very real problem, and reasonable proposals to augment the ample array of enforcement powers already at the disposal of IP rights holders and law enforcement officials may serve the public interest. But the power to break the Internet shouldn’t be among them.

SOPA: What You Should Know & Why We Oppose It

2011-12-22T12:00:00.002-05:00

By Jeremy Hitchcock

Are you familiar with the Great Firewall Of China? Sometimes referred to as the Golden Shield project, it’s a Chinese government censorship and Internet surveillance project kicked off in 1998 and put into action in 2003. Simply put, it enables the government to restrict what content its citizens can read and view via IP blocking and DNS filtering. If they don’t like a site request a user makes, it won’t get viewed.

Many dismiss what’s happening in China and chalk to up to their communist political system. That could never happen in a free speech-driven, rights for all society like we have in the United States, right?

If the Stop Online Piracy Act (SOPA) introduced this week gets enacted into law, things could change negatively for Americans which is why Dyn opposes the bill.

What Is SOPA?

The goal of the bill is to “expand the ability of federal law enforcement to shut down foreign Web sites and services that use counterfeited or pirated content created by U.S. firms.” It was introduced by Texas Republican Lamar Smith earlier this week as a companion to the Protect IP bill introduced that would punish those web entities that host unauthorized, copyrighted content like movies, software, songs and anything else that can be illegally downloaded.

While online piracy is obviously bad, this is the wrong way to go about fighting it. We understand why the groups like the Motion Picture Association of America and the U.S. Chamber of Commerce are supporting the bill as piracy of content costs the original producers/distributors tens of billions of dollars. They’re desperate for a solution to recoup that lost revenue. This isn’t it.

Why We’re Opposed To It

Web companies like Google, Yahoo and some of our fellow DNS providers like OpenDNS have strongly come out in opposition to SOPA and for good reason. Essentially, this bill would give the government more control into shutting down websites they don’t agree with in general. Anti-American sentiment promoted on Twitter, Tumblr or another one of our clients that promotes free discourse? Both the sites themselves and Dyn as their DNS provider could be penalized for simply providing a conduit in which someone can access or promote views the government doesn’t agree with — regardless of whether the source is based in the U.S. or not.

The Great Firewall of America? Yep, kinda feels like that. SOPA is a shot across the bow of free speech and as one of the largest Internet IaaS companies in the world, we cannot endorse it in any way, shape or form.

What Can You Do?

If you’re based in the U.S. and against this act, we urge that you e-sign this petition to ‘Stop The E-Parasite Act’. The initial goal was to get 25,000 signatures by the end of November and as I write this, there are more than 40,000. Clearly, this is a movement that is gaining momentum.
For our international friends, there is a petition here that has got a tremendous following.

You can also contact your local government officials and tell them you oppose SOPA. The more people that are heard, the more the government will understand that this level of control over today’s Internet is unneeded and unwanted. We don’t often rally the troops for causes such as this, so hopefully this post gets across the impact of how strongly we oppose SOPA.

SOPA: Why Do We Have To Break The DNS?

2011-12-22T11:59:00.000-05:00

By Tom Daly

Last month, we posted our position piece on the Stop Online Piracy Act, also known as SOPA or the E-Parasite Act. In this post, I’m going to examine the technical details of the act and how it relates to the operation of the global Domain Name System (DNS).

SOPA proposes the idea of using DNS-based filtering by Internet Service Providers (ISPs) as a means to remove U.S. support of a foreign infringing website.

While the bill doesn’t specifically define how the ISP should technically go about this, it does seem to indicate that an ISP should capture, redirect and modify DNS query / response pairs to ensure that a downstream user does not access the site. There’s a number of ways to “remove support” from a foreign infringing website at the DNS level, so we’ll take a look at the techniques that could be used at all the layers of the DNS and why some are more destructive than others.

There is the domain registration itself, which signals existence of a domain into the appropriate top-level domain’s DNS zone.
For example, if the domain “example.com” was a foreign infringing site, a law enforcement agency could petition Verisign (the registry operator of the .com TLD) to remove the relevant DNS records that provide the delegation for example.com. In fact, this type of behavior isn’t SOPA specific and our current judicial framework permits this to happen today.

One should note that the impact of such a suspension would have a worldwide impact. All users of the domain name would no longer be able to access services offered by that domain.

There’s the authoritative DNS service for example.com which could be terminated.
A delegation for example.com is made from Verisign to the domain’s authoritative DNS provider to a company such as Dyn. If a foreign infringing site were to be supported by a U.S. authoritative DNS provider, law enforcement could petition the authoritative DNS provider to remove support for the domain by terminating authoritative DNS service. Again, this would cause a worldwide suspension of services for the domain, but unlike a registry level termination, the alleged infringer could move services to another authoritative DNS provider and continue doing whatever he/she was doing utilizing the newly acquired authoritative DNS service.

There’s recursive DNS interception, redirection and alteration (which is the primary technique contemplated by SOPA) that would be implemented at the ISP level.
Unlike TLD and domain authoritative nameservers (of which any set are under the same common administrative control, i.e. Dyn), recursive DNS servers are deployed Internet wide in clusters throughout ISPs. Under SOPA, U.S. ISPs would be required to accept an additional “feed” of data which would include a list of known or alleged domains participating in foreign infringement.

The feed would be used to block DNS queries made for foreign infringing domains and would remove U.S. access of these domains for users of U.S. ISPs. The feed could be incorporated into DNS using a variety of techniques including deep packet inspection (DPZ), a software interface such as BIND’s Response Policy Zones (RPZ) or even by creating false zones in the recursive DNS servers view.

From Dyn’s perspective, the third option — ISP-based DNS query manipulation — is the most hazardous to the health of the global DNS.
Implementing such a solution breaks the distributed tree of authority concept used by the DNS by “injecting” U.S. nationalized pieces of DNS policy into the system. ISPs around the United States would become responsible for implementing, maintaining and monitoring these SOPA feeds into their DNS infrastructures, creating an additional layer of operational complexity for their DNS operations. Additionally, since not all DNS systems permit the inclusion of external data feeds to support local policy, many operators would be required to upgrade the recursive DNS infrastructures in significant ways.

There’s a number of conditions that could occur where a SOPA-fed recursive DNS server could hand back incorrect DNS data or be circumvented all together. If an ISP were to have issues pulling the SOPA feed or clearing domains from the SOPA list, a single domain could be blacklisted in the United States when it is perfectly legal to be used. If the source of a SOPA feed were to ever be compromised, an attacker could take critical Internet infrastructure domains offline by adding them to the feed (i.e. root-servers.net).

Savvy users could simply bypass a SOPA-enabled recursive DNS server by pointing their DNS settings to an off-shore recursive DNS server. Technically savvy networks might respond by blocking port 53 externally or by hijacking port 53 traffic on their network to their SOPA-enabled recursive DNS resolvers. Anyone want to bring Net Neutrality into this discussion? What would happen to users if an infringer decided to setup a “free, non-SOPA” recursive DNS server for users to use – one that additionally hijacked legitimate banking, ecommerce and business websites, too?

It is Dyn’s opinion that the technical implementation techniques contemplated by SOPA do more damage to the global DNS than help solve the problem it aims to tackle. There are existing law enforcement techniques available to deal with copyright infringement today at the registry level, so we ask why are they not being effectively utilized? Must we resort to breaking the DNS?

Chinese Authorities Lose Control as Village Revolts

2011-12-22T11:55:00.000-05:00

So... you've been indefinitely detained!

2011-12-22T11:50:00.002-05:00

It’s for charity - but is it for a good cause?

2011-12-22T11:41:00.002-05:00

By Holden

People can get away with some incredible things as soon as they say that what they’re doing is “for charity.” First among these, of course, are the tax advantages that subsidize everything from helping the needy to fighting gun control, convincing people to eat beef, and stockpiling giant piles of cash for eternity. But it isn’t just the IRS that loses all ability to tell right from wrong as soon as the word “charity” comes up. It’s all of us. Except me.

You may not attend a rock concert to benefit beef, but what about cancer research? How about humane societies? Of course, these two causes are in direct conflict over the question of animal testing - many humane societies put significant amounts of their resources directly into trying to illegalize the testing that other “charities” are busy funding.

Charities oppose each other in more subtle ways as well. Going through all these 990s, I’ve really become aware of the huge presence among charities of political advocacy. It’s natural that charities find themselves wanting to address the “root causes” of the problems they address; but as soon as they do this, it’s no longer safe to say that their funds are “going to a good cause” without at least thinking twice. After all, if the legal changes they want to make were completely noncontroversial, you’d think they’d already be made. If you go to a concert to “fight global warming” or “save the environment,” your dollars aren’t going to feed cuddly bunnies; chances are, they’re going to lobbyists, advocates, even demonstrators, with the aim of putting laws in place that might be pro-environment or anti-business, depending on your point of view. And even if you’re on the pro-environment side, it’s worth considering that one of the biggest struggles in politics is not just for position, but for attention and prioritization. When it comes down to it, Greenpeace (saving the environment) and Oxfam (fighting poverty) are largely working against each other - trying to get legislators to pay attention to their issue rather than others.

And at least as big as political advocacy, at least judging by charities’ mission statements, is “raising awareness.” Well, awareness is a zero-sum game too. People only have so much attention span available for things that aren’t sports and diets. You want to raise awareness for Darfur, for global warming, or for Lou Gehrig’s disease? “All of the above” isn’t necessarily an option.

Tooling around through my recent Google alerts (”Charity”), I see a mind-boggling silence on these questions. Indeed, I see Barry Bonds being praised for “giv[ing] some of his own things to charity,” with no mention of what causes he’s supported. I see a whole article on celebrities’ support of charities for Mother’s Day, without the mention of a single charity beyond Eva Longoria’s personal foundation (not a word on that foundation’s priorities). I see plenty of debate on the recent “Idol Gives Back” campaign in terms of whether its “devotion to charity” makes up for its cheesiness … but my question is, what does the ONE campaign (one of its beneficiaries) mean when it talks about “call[ing] for debt cancellation, trade reform and anti–corruption measures”? That sounds like legal change - what does the campaign want and is it a good idea? Nobody else wants to know?

It’s the same old problem: as soon as people hear the word “charity,” their critical faculties turn off. Of course, celebrities and athletes would love it to stay this way - the last thing they need is more questions, just when they’re trying to clean up their image by throwing a few bucks at 501c3’s. But the rest of us would do well to wake up. I’ve said it before and I’ll say it again: if you want to know if someone is doing good things, the best way is to look at what they’re doing.