Statistical Numbing: Why Millions Can Die and We Don’t Care

The way we perceive risk makes mass death more likely

by David Ropeik in How Risky Is It, Really?

Four year-old Khafra was near death three days ago when he was brought to the refugee camp hospital. He was emaciated, his ribs showing through his taut dry skin. He panted for breath. His desperate eyes bulged. His mother Alyan could only sit at his side and watch, helpless, sad beyond comprehension, but herself too malnourished to cry. Doctors are still not sure Khafran can be saved.

The famine in the Horn of Africa has left more than 12 million people malnourished, including half of Somalia's population. The U.N. says 640,000 Somali children are starving, and more than 29,000 children in southern Somalia have starved to death in the last 90 days.

Which of those two paragraphs was more emotionally powerful? It should have been the second, shouldn't it, based on the scale of the suffering, 640,000 starving kids to one? But the first paragraph almost certainly carried more emotional punch. The famine in northeast Africa is once again forcing us to confront the truth about the way our brains work, a profound truth with sobering implications. As smart as we think we are, as rational as we believe our powerful brains enable us to be, our perceptions are the product of both reason and emotion, a combination of the facts and how those facts feel, and sometimes this emotional/instinctive/affective system can produce perceptions with tragic consequences.

Mother Theresa said "If I look at the mass I will never act. If I look at the one, I will." Josef Stalin said "One death is a tragedy. One million is a statistic." Numerous experiments have helped verify the truth behind what both the saint and the mass murderer knew intuitively, that we relate more closely to what happens to one person than to what happens to large numbers of people.

In one study, people were asked what they'd donate to life saving efforts that might help save one child. They were also asked what they'd donate toward life saving efforts that would help eight children.

One Child $11.00

Eight Children $5.00

In another study people were paid to participate in an unrelated psychological quiz, and on the way out they were given the opportunity to donate up to $5.00 of their earnings to Save The Children. They were given three options;
--- They could donate to help Rokia, a 7 year-old Malian girl. The subjects were shown a picture of Rokia. They were willing to give $2.25.
--- They could donate to help the hundreds of thousands of children in eastern Africa who were starving. They were willing to give only $1.15.
--- The third option was to help Rokia specifically, but along with this request subjects were also given the statistics about the other starving east African kids. The same people who were willing to give $2.25 when it was just for Rokia, were only willing to give $1.40 when the request to help Rokia included information about the larger statistics!

Help Rokia $2.25

Help Statistical Lives $1.15

Help Rokia (with statistics) $1.40

This statistical numbing begins at anything more than ONE! Researchers asked three groups about donating to save lives. The first group was shown a single child's face and name and asked to donate to save that one child. The second group was shown another child's face and name and asked to donate for that child. The third group saw both faces, and was asked to donate to save both.

Save Child One $3.25

Save Child Two $3.25

Save Both $3.00

Paul Slovic, one of the pioneers of research into the way we perceive risk, calls this greater concern for the one than the many "a fundamental deficiency in our humanity." As the world watches but, insufficiently moved, fails to act to prevent mass starvation or stop genocides in Congo or Kosovo or Cambodia or so many more, who would not agree with such a lament. But as heartless as it seems to care more about the one than the many, it makes perfect sense in terms of human psychology. You are a person, not a number. You don't see digits in the mirror, you see a face. And you don't see a crowd. You see an individual. So you and I relate more powerfully to the reality of a single person than to the numbing faceless nameless lifeless abstraction of numbers. "Statistics," as Slovic put it in a paper titled "Psychic Numbing and Genocide" , "are human beings with the tears dried off." This tendency to relate more emotionally to the reality of a single person than to two or more people, or to the abstraction of statistics, is especially powerful when it comes to the way we perceive risk and danger, because what might happen to a single real person, might happen to you. As the familiar adage puts it, "There but for the grace of God go I."

This has all sorts of profound implications. Statistical numbing plays a huge role in what the news media covers, and what it doesn't, since the media are in the business of bringing us information we are likely to pay attention to, and our attention is less drawn to numbers than stories about individual people (which explains the success of the narrative device of weaving stories about big issues around a personal example). Less coverage means less concern, because we certainly can't be moved by these tragedies if we don't know much about them. And public concern drives government policy, so statistical numbing helps explain why nations so often fail to expend their resources to save people elsewhere who are starving, or dying of disease, or being raped and murdered, in the tens and hundreds of thousands.

Remember that research about willingness to donate? It's not just research. British donations to help the victims of the 2004 south Asian tsunami, which got intense media coverage in part because it was a singular catastrophic event rather than an ongoing crisis, were 45 times higher than they have been so far to help feed starving east Africans, regardless of the huge numbers of victims in both cases. Donations in the U.S. for the African famine are also lower than for many other disasters. "I'm asking myself where is everybody and how loud do I have to yell and from what mountaintop," asked one frustrated senior fundraiser about the current east African famine. Sorry, but there is no mountaintop high enough nor voice loud enough to overcome this intrinsic aspect of human psychology.

The profound and sobering truth is that our perceptions are an inextricable blend of reason and subjective emotion. Between the one real human and huge but abstract numbers, the numbers simply don't carry the same emotional power, and they never will. One death will always move us more than one million. This "fundamental deficiency in our humanity" is an inescapable part of the human animal. Perhaps by recognizing this about ourselves, and its tragic implications, we can do something about it. But that is hoping that reason can overcome emotion in the way we perceive things. Sadly, the evidence suggests that there will be a lot more suffering before that happens.

Reminder: The Embarrassing Naked Photos On Your Stolen Laptop May Not Belong To The Thief

Many a lost laptop has been recovered thanks to tracking software like BackBlaze, LoJack and Hidden that tech-savvy computer owners install on their computers in case it falls into the wrong hands. The tales of these recoveries tend to be dramatic ones, with the rightful owner of the computer perhaps using location-tracking to see where the computer is when it is turned on or intercepting their browser activities and webcam photos to figure out who the dastardly thief is.

Some victims take pleasure in publicly shaming the thief who nabbed their laptop. Young entrepreneur Mark Bao used BackBlaze to tap into his stolen laptop where he found a home-made video of his thief break-dancing (which he posted to YouTube). A year after someone stole a Macbook from hacker Andrew ‘zoz’ Brooks, he regaled a Defcon audience with the tale of how he tapped into the computer to figure out who the thief was and where he lived; he also shared with the audience naked photos the thief had taken of himself in the shower, as well as messages he had exchanged with women on dating sites. When I watched that amusing and highly embarrassing pillory, I wondered to myself, “What if the person who is in possession of the computer isn’t actually the thief, but is being shamed as if he is?”

Well, that’s exactly what happened to Susan Clements-Jeffrey, reports Evan Brown at Internet Law Cases. She unknowingly used a stolen laptop to exchange explicit photos with her boyfriend and those photos wound up in the hands of a theft-recovery company and a couple of detectives, who called them “disgusting” when they arrested her. Now she’s suing the police department and Absolute Software, and she’s got a strong case…

While working as a substitute teacher at an “alternative high school” in Ohio in 2008, Clements-Jeffrey purchased a laptop from one of the students for $60. The low, low price probably should have tipped her off that the laptop was stolen. The student told her that the laptop was messed up and that his parents had given him a new one. In fact, the laptop belonged to another school district and had been reported stolen by a student who had checked it out and was using it at a public library.

Clements-Jeffrey, 52, got the laptop fixed up and then started using it to correspond with her long-distance boyfriend. Given the distance, their correspondence was at times quite sexually explicit, including steamy emails and instant messages (gSex?) and the exchange of naked photos.

Little did Clements-Jeffrey and her bf, Carlton Smith, know that the laptop had theft-recovery security software installed on it. The software was called “LoJack for Laptops” and was provided by Absolute Software. After it was reported stolen, the school district asked Absolute to retrieve information from the laptop to recover it. (If you followed the Pennsylvania school spycam story, this probably sounds familiar.) Once activated, it reported the laptop’s IP address, and granted Absolute remote access over the computer, with the ability to intercept emails, capture screenshots, and log key strokes.

Absolute captured screenshots of both lovebirds doing their best porn star poses. The Absolute recovery officer sent the explicit photos along with location information for the stolen laptop to the Springfield Police Department. The police made their way to Clements-Jeffrey’s house with a warrant where they seized the laptop. Clements-Jeffrey told them she hadn’t realized it was stolen. According to a judicial opinion in the case (via Internet Cases), the officers “told her that she was stupid and that she was under arrest” for receiving stolen property. They also showed her the sexy shots and “told her she should have known better than to do that kind of stuff on the webcam.” One of the prudish detectives wasn’t a fan of the photos, calling them “disgusting.”

The charges against Clements-Jeffrey were eventually dismissed, but then she sued the police department and Absolute Software for invasion of privacy, constitutional violations (on the part of the police department) and violating computer crime laws.

Absolute and the prudish po-po tried to get the case dismissed. They argued that Clements-Jeffrey should have known that the laptop was stolen and thus forfeited her right to privacy. They had one expert witness, a criminal law professor, go a step beyond that, attesting that “there is no reasonable expectation of privacy in communications via the Internet.” Period. The idea that any electronic communication lacks privacy protection whether on a stolen laptop or not is a scary thought and a ridiculous conclusion. The judge threw out that “expert opinion,” explains cyberlaw prof Susan Brenner who called it an “expert opinion FAIL.”

Judge Walter Herbert Rice ruled last week that Clements-Jeffrey and Smith have a legitimate case and are entitled to take it to trial. It’s an interesting case, and will be a meaty one for a jury to decide. Thieves do lose rights to privacy for their stolen goods. But what if they don’t know it’s stolen? And even if they do know it’s stolen, is it really necessary for the laptop police (and the real police) to be grabbing and exchanging their naked photos? I imagine it would be easier to identify a perp from photos where their clothes are on.

I reached out to Absolute for a comment on the case and to ask whether they’ve put any procedures into place to avoid “exposing” a person who has a stolen laptop who’s not a thief. They declined to comment on pending litigation.

Evan Brown sums up the issues at stake here well. It’s not that Absolute tried to track down the laptop, but that they decided to intercept (and share) the nude photos:

In so many words, the court was saying that Absolute went too far in collecting the contents of the communications being made on the stolen computer. Had the information collection stopped at IP addresses and other non-content information, the remote tracking efforts may not have run afoul of the ECPA.
via Using remote tracking software to find stolen laptop may have violated federal wiretap statute.

John Marshall, the attorney for the plaintiffs says the case is set to go to trial in two weeks on September 12. “We’re eager to bring this case to the jury,” says Marshall. “It’s a fascinating case and I’m eager to see what a jury will think.”

In the meantime, if you decide to trace your stolen laptop, think twice about what you decide to intercept and share. Break-dancing videos and nude shower photos could end up getting you into trouble.

Pakistan to ban encryption software

Internet service providers will be required to inform authorities if customers use virtual private networks in government crackdown

Josh Halliday and Saeed Shah

Millions of internet users in Pakistan will be unable to send emails and messages without fear of government snooping after authorities banned the use of encryption software.

A legal notice sent to all internet providers (ISPs) by the Pakistan Telecommunications Authority, seen by the Guardian, orders the ISPs to inform authorities if any of their customers are using virtual private networks (VPNs) to browse the web.

Virtual private networks allow internet users to connect to the web undetected, meaning that they can access banned websites and send emails without fear of government interception.

Pakistan's 20 million internet users have previously been banned from popular social networks, such as Facebook, because of blasphemous material about the prophet Muhammad. All internet traffic in the country travels through the Pakistan Internet Exchange, which can be intercepted by the military and civil intelligence agencies. The move echoes a crackdown against encrypted communications across the border in India and in China.

The Pakistan Telecommunications Authority legal notice urged ISPs to report customers using "all such mechanisms including EVPNs [encrypted virtual private networks] which conceal communication to the extent that prohibits monitoring". Anyone needing to use this technology needs to apply for special permission, the notice said.

Authorities in Islamabad insisted that the ban on VPN access was intended to stem communications by terrorists.

However, banks, call centres and many other businesses use encrypted connections to communicate with their branches and customers, to protect sensitive data such as account numbers and passwords.

"This is like banning cars because suicide bombers use them," said Shakir Husain, chief executive of Creative Chaos, a Karachi-based software company. "You have to find out who these guys [extremists] are. This is a blanket, knee-jerk, response."

There is strict regulation of internet traffic in Pakistan. Last year, the authorities banned the entire Facebook website for months after a user launched a contest to draw a cartoon of the prophet Muhammad. Accessing the internet on BlackBerry smartphones is problematic, because of the device's high-security encryption software.

Recently the regulator made it impossible for Pakistanis to access the website of Rolling Stone magazine, after it published an article on the high proportion of the national budget in Pakistan that goes on its military.

Public Interest Groups to FCC: BART Cell Phone Shutdown Broke Telecom Laws

by Rebecca Jeschke

EFF has joined Public Knowledge and other public interest groups in asking the Federal Communications Commission (FCC) to clarify that the cell phone shutdown by the Bay Area Rapid Transit system (BART) earlier this month was a violation of American telecom laws. In an emergency petition filed Monday, the coalition urged the FCC to act quickly, as other governmental agencies may follow BART's illegal actions.

This all started back on August 11, when BART officials heard rumors of a protest planned in response to fatal shootings by the agency's police. In a controversial move that made news around the world, BART decided to shut down cell service in four underground stations in downtown San Francisco, claming it was necessary for public safety.

We've already discussed how blocking wireless access actually hurts public safety — particularly as the service was implemented in response to users' worries about communication in a crisis — not to mention the First Amendment concerns with a government agency restraining the free speech rights of its customers. This petition highlights yet another problematic aspect of BART's shutdown: the violation of federal laws meant to protect all Americans' communications. The FCC should clarify this as soon as possible, before BART's misguided attempts to quell criticism spread to other government agencies.

Child protection measures apply regardless of religious rules

The Irish justice minister has said that forthcoming child protection measures, including mandatory reporting will "apply regardless of any internal rules of any religious grouping".

Alan Shatter was responding to comments made by Cardinal Sean Brady who defended the seal of confession.

Cardinal Brady stressed it was a "sacred and treasured" rite.

Mr Shatter said past failures in the Catholic Church had led paedophiles to believe they could act with "impunity".

Last month the Cloyne report was published.

It found the diocese failed to report all complaints of abuse to police. Past failures

As a result, a number of child protection measures were announced under the legislation currently being drawn up.

A priest could be convicted of a criminal offence if they were told of a sexual abuse case and failed to report it to the civil authorities.

In a statement, a spokesperson for Mr Shatter said: "It is the failure in the past to make such reports that has led sexual predators into believing that they have impunity and facilitated paedophiles preying on children and destroying their lives."

Anyone who fails to declare information about the abuse of a child could face a prison term of five years.

The Irish Children's Minister Frances Fitzgerald said that priests who are given admissions of child abuse during the sacrament of confession will not be exempt from new rules on mandatory reporting.

During his homily to worshippers at Knock shrine in County Mayo, on Sunday, the archbishop of Armagh and primate of all Ireland said: "Freedom to participate in worship and to enjoy the long-established rites of the church is so fundamental that any intrusion upon it is a challenge to the very basis of a free society" he said. Child protection

The inquiry into the Cloyne Diocese was set up by the Irish government in January 2009 following a report published the previous month.

It was conducted by the National Board for Safeguarding Children (NBSC) - a body set up by the Catholic Church to oversee child protection policies.

It found child protection practices in the diocese were "inadequate and in some respects dangerous".

Meanwhile, it has been announced that 22 new seminarians are to begin studying for the priesthood this autumn at Ireland's national seminary, Saint Patrick's College in Maynooth.

The group includes a chartered surveyor, a pub manager, several mature students and at least one school leaver.

The average age of the new entrants is 25-years-old, and they come from 14 of the 26 dioceses of Ireland.

Thai censorship critic strikes back at snitch Web host

By Matthew Lasar

In May 2006, Anthony Chai, a naturalized United States citizen from Thailand, took a flight back to the land of his birth to catch up with relatives and friends. He visited his nieces and nephews and spent some time at the resort town of Hua Hin.

But according to a new lawsuit, when Chai tried to return to California via Bangkok airport, he was stopped by a quintet of security agents. Employed by Thailand's Department of Special Investigation, they informed him that they had a warrant for his arrest for committing an act of lèse majesté—a public statement that supposedly violates the "dignity" of a ruler.

Thailand's version of the law, which was deployed against YouTube in 2007, seems (relatively) narrow at first glance. "Whoever defames, insults or threatens the King, Queen, the Heir-apparent or the Regent, shall be punished with imprisonment of three to fifteen years," it stipulates, and punishes those found guilty of making these insults with long prison sentences. But human rights advocates say it is now used against anyone who utters a statement critical of the government.

The DPI officers took Chai to an interrogation center and allegedly deprived him of food, water, and sleep until 3:30am while barraging him with accusations and threats. "I know where your relatives live in Bangkok and California," Chai says that one policeman told him. "If you want them to live in peace, you must cooperate."

Bloodless coup

Anthony Chai made his visit back home during one of the most chaotic moments in Thailand's recent history. As he arrived, the country's beleaguered populist Prime Minister Thaksin Shinawatra was fighting for his political (and actual) life. Opponents of his Thai Tak Thai party were boycotting his call for new elections, accusing Shinawatra of corruption. By September, amidst terrorist attacks and assassination attempts, the military removed him from political power and banned Thai Tak Thai from politics.

According to his lawsuit, at the beginning of his incarceration, Chai asked for a lawyer. Eventually he received an attorney who said nothing for most of the grilling besides advising him to answer all questions asked by the police. He endured two long periods of questioning, during which he was deprived of food, water, and sleep.

Meanwhile DSI authorities took his laptop and, according to the complaint and "forced" Chai to disclose his security passwords specific to that computer. Then "the officers forced him to provide them with all of his email addresses and passwords."

At one point during the interrogation, Chai was presented with a document that revealed the e-mail addresses that he and an associate had used to post comments to manusaya.com. Finally DSI officers forced him to compose a statement confessing that he had broken Thailand's lèse majesté laws, promising never to break them again, and praising the country's king.

At 5pm on May 10, 2006, Chai was released but warned that he could be arrested again upon return to Thailand. He contacted his family to let them know what had happened and returned to Long Beach, California, where he runs a computer sales and maintenance shop.

Time to surrender

But Chai's ordeal did not end there. The lawsuit says that the man who had supervised his interrogation, Police Colonel Yanaphon Youngyuen, began contacting him in the United States, asking him to send copies of any "pro-democracy or anti-monarchy materials he had in his possession."

Not only did Youngyuen allegedly contact him by e-mail, but in July 2006 actually visited Chai while in the United States to attend a policing course offered by the US government in Washington, DC. What happened next is described as follows:

49. Because Plaintiff continued to want to appear cooperative with the investigation, he agreed to meet Pol. Col. Youngyuen at LAX [airport].
50. During the telephone conversation, Pol. Col. Youngyuen told Plaintiff that he would like Plaintiff to bring iPods or some other similar items of value home for his children.
51. Plaintiff and Pol. Col. Youngyuen met for approximately thirty minutes at a McDonald's restaurant at LAX.
52. Plaintiff did not bring iPods to the meeting. He brought local Thai newspapers that he thought Pol. Col. Youngyuen could read back on the flight back to Thailand. Pol. Col. Youngyuen made it clear to Plaintiff that he was very disappointed that he did not bring any gifts of value.

Chai asked whether his computer would be returned to him, and was told that it would remain with the authorities as long as the investigation continued. Youngyuen subsequently wrote to the Plaintiff asking him to return to Thailand for further questioning.

"The time has come for you to officially surrender yourself to the investigators of this case," one explained. "[Y]ou are required to surrender to our bureau on August 24, 2006 at 10:00 AM..."

Criticism not welcome

Did Anthony Chai even make statements against the Thai monarchy? No. Using an anonymous e-mail address, he had posted comments critical of Thailand's lèse majesté law to the website www.manusaya.com, which has been publicly denounced by Thai officials as encouraging people "to lose faith and love of the monarchy, including each and every princess." The site was eventually shut down by its Canadian host, Netfirms, at the request the Thai government.

But Netfirms didn't just close the site, say Chai and his attorneys.

"Sometime before May 2006, also at the request of Thai officials, Netfirms.com provided Mr. Chai's IP address and the two e-mail addresses associated with that IP address," Chai's complaint charges, "without Mr. Chai's knowledge or consent." In addition, the Canadian company allegedly handed over this data without requesting a court order, subpoena, or warrant from Thai authorities, and without contacting the US State Department for guidance.

Now Chai, with the assistance of the World Organization for Human Rights, is suing Netfirms for $75,000 in restitution and punitive damages. His lawsuit, filed in a central California district court, charges Netfirms with violation of Canada's Personal Information Protection and Electronic Documents Act (PIPEDA), the privacy provisions in California's Business and Professions Code, and the Declaration of Rights contained in California's constitution.

We contacted Netfirms about this lawsuit. A representative told us that the company has no comment at this time.

The Copyright Nightmare of "I Have a Dream"

by Alex_Pasternack


If you weren’t alive to witness Martin Luther King’s “I Have a Dream” speech on the Washington Mall 48 years ago this week, you might try to switch on the old YouTube and dial it up. But you won’t find it there or anywhere else; rights to its usage remain with King and his family.

Typically, a speech broadcast to a large audience on radio and television (and considered instrumental in historic political changes and ranked as the most important speech in 20th century American history) would seem to be a prime candidate for the public domain. But the copyright dilemma began in December 1963, when King sued Mister Maestro, Inc., and Twentieth Century Fox Records Company to stop the unauthorized sale of records of the 17-minute oration.
This video is subject to a copyright claim by EMI publishing.

Then, in 1999, a judge in Estate of Martin Luther King, Jr., Inc. v. CBS, Inc. determined that the speech was a performance distributed to the news media and not the public, making it a “limited” as opposed to a “general” publication. That meant the speech, like other “performances” on CBS, was not in the public domain. That meant the King estate had the right to claim copyright and had standing to sue CBS, which had used a portion of the speech in a 1994 documentary, “The 20th Century with Mike Wallace.”

The claim had been made before. In 1994, USA Today had paid the King estate $10,000 in attorney’s fees and court costs plus a $1,700 licensing fee after publishing the full speech without permission; the estate also sued the documentary producer Henry Hampton, alleging the unauthorized use of Dr. King’s image and words in the landmark 1987 public television series Eyes on the Prize.


“Martin Luther King, Jr. vs. Mister Maestro, Inc. and Twentieth Century-Fox Record Company,” page one

Also crucial in the estate’s copyright claims: though King himself claimed copyright of the speech a whole month after he delivered it, his claim was seen as valid because no “tangible” copy of the speech had been distributed before he made his claim. (The ruling was based on previous copyright law, from 1909, not the 1975 law we use today.)

And yet, because CBS settled with the family out of court for an undisclosed sum, the law never fully considered the matter of the speech’s copyright. Today, the audio version of the speech can be hard to come by, and unabridged film footage of it has escaped the cultural memory banks of YouTube. The single unabridged video that had been floating around YouTube is now unplayable, thanks to a copyright claim by EMI.

Excerpts from the speech can still be used under “fair use,” of course, like in this analysis of King’s rhetoric and various remixes. (My favorite MLK remix is not of the “I have a dream” speech but of the ’I’ve been to the mountaintop’ speech. But no one knows what the limits of “fair use” are, at least not until they receive a letter from the King family’s lawyers.

The practice of putting what seems like public domain material into private ownership didn’t start here. The family of Richard Nixon sold his papers to the U.S. government for $18 million. And the infamous, definitive home movie of President Kennedy’s assassination by Abraham Zapruder was subject to a long, hellish copyright dispute between his family and Time, Inc.

Joseph Beck, an expert in intellectual property and an attorney for the King family, which was left without much money after MLK’s death, told the Washington Post in 2006 that, “The King family has always supported providing access to the speech and to the video for educational purchases and encourages interested persons to contact the King Center in Atlanta.”

At the family’s Web site, videotapes and audiotapes of the speech can be purchased for $10 a piece. The family controls the copyright of the speech for 70 years after King’s death, in 2038.

Until then, you’ll most likely have an easier finding ABBA’s version of “I Have a Dream” than King’s.

A Victory for Recording in Public!

by Jeffrey P. Hermes


The CMLP is thrilled to report that in the case of Glik v. Cunniffe, which the CMLP has blogged previously and in which the CMLP attempted to file an amicus brief, the U.S. Court of Appeals for the First Circuit has issued a resounding and unanimous opinion in support of the First Amendment right to record the actions of police in public.

For those of you not familiar with Simon Glik's case, Glik was arrested on October 1, 2007, after openly using his cell phone to record three police officers arresting a suspect on Boston Common.   In return for his efforts to record what he suspected might be police brutality -- in a pattern that is now all too familiar -- Glik was charged with criminal violation of the Massachusetts wiretap act, aiding the escape of a prisoner and disturbing the peace.

As tends to happen in cases like these, the charges didn't hold up, with the Commonwealth dismissing the aiding escape charge and the Boston Municipal Court dismissing the remaining charges.  But unlike most arrestees, Glik, with the assistance of the ACLU, fought back against this treatment.  He filed an internal affairs complaint with the Boston Police Department, but the BPD neither investigated the complaint nor initiated any disciplinary action.

Undeterred, in February 2010, Glik filed suit in federal court against the officers and the City of Boston under 42 U.S.C. § 1983 and the Massachusetts Civil Rights Act.  Glik alleged that the police officers violated his First Amendment right to record police activity in public and that  the officers violated his Fourth Amendment rights by arresting him without probable cause to believe a crime had occurred.

Naturally, the police officers moved to dismiss on the basis of qualified immunity, but Judge Young was having none of that, denying the motion from the bench and ruling that "in the First Circuit . . . this First Amendment right publicly to record the activities of police officers on public business is established."  The police officers then appealed to the First Circuit, but they have now struck out on appeal as well, with the First Circuit ruling that "Glik was exercising clearly-established First Amendment rights in filiming the officers in a public space, and that his clearly-established Fourth Amendment rights were violated by his arrest without probable cause."

Pardon me while I bask in the warm glow of that sentence for a moment.  Let's see if we can find some more excellent quotations.

• "[I]s there a constitutionally protected right to videotape police carrying out their duties in public?  Basic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative."
• "Glik filmed the defendant police officers in the Boston Common, the oldest city park in the United States and the apotheosis of a public forum.  In such traditional public spaces, the rights of the state to limit the exercise of First Amendment activity are 'sharply circumscribed.'"
• "[A] citizen's right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment."
• "Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting 'the free discussion of governmental affairs.'"

I've got chills.  Let's hope that last quotation helps us find some more room for cameras in the federal courts.

The First Circuit relied on its earlier opinion in Iacobucci v. Boulter, as well as a plethora of decisions from other courts, in holding that the First Amendment right to record public officials in public spaces had been well established.  The Court also dismissed the suggestion that the discussion of the First Amendment right to record in Iacobucci was too cursory to clearly establish the right.  To the contrary, the Court stated that "[t]he terseness implicitly speaks to the fundamental and virtually self-evident nature of the First Amendment's protections in this area."

"Self-evident." They actually said "self-evident."

The Court also rejected any distinction of those cases based upon the fact that Glik was not a reporter, holding that "[t]he First Amendment right to gather news is, as the Court has often noted, not one that inures solely to the benefit of the news media" and noting the importance of citizen journalists:

[C]hanges in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw.  The proliferation of electronic devices with video-recording capability means that many of our images of current events come from bystanders with a ready cell phone or digital camera rather than a traditional film crew, and news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper.  Such developments make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status.

(Meanwhile, over in the state courts, the Supreme Judicial Court of Massachusetts is currently mulling over amendments to SJC Rule 1:19 -- Massachusetts' cameras in the courtroom rule -- that would expand the role of citizen journalists in the courts of the Commonwealth.  We're getting there, folks.)

On the Fourth Amendment side, the police officers fared no better with their argument that they had probable cause to arrest Glik under the wiretap law.  The argument before the First Circuit turned on the question of whether Glik's recording of audio could be considered "secret," as required by M.G.L. c. 272, § 99, when he was holding his cell phone out in full public view in broad daylight.  The police officers claimed that the audio recording was "secret" as far as they were concerned, because they had no subjective knowledge that Glik was recording audio as opposed to capturing still images or soundless video.

The First Circuit, analyzing Massachusetts state law, found that the question of secrecy turned on "notice, i.e., whether, based on objective indicators, such as the presence of a recording device in plain view, one can infer that the subject was aware that she might be recorded." (emphasis added)  That invocation of an objective standard for secrecy doomed the police officers' argument.  The Court noted that Glik's complaint alleged that he was recording openly and that the police were aware of his activity, and thus held that Glik's conduct "falls plainly outside the type of clandestine recording targeted by the wiretap statute."

The Court also rejected the police officers' reliance on their claim that they were unaware Glik was recording audio specifically, because Glik's complaint alleged that the police were at least aware that the device could record audio:  "Simply put, a straightforward reading of the statute and case law cannot support the suggestion that a recording made with a device known to record audio and held in plain view is 'secret.'"  Accordingly, the Court stated:

The presence of probable cause was not even arguable here. ... For the reasons we have discussed, we see no basis in the law for a reasonable officer to conclude that such a conspicuous act of recording was 'secret' merely because the officer did not have actual knowledge of whether audio was being recorded.

So, clearly established First Amendment right to record the police in public - check.  Clearly established Fourth Amendment right against being arrested for violating the wiretap act when you're openly recording in public - check.  Even though I'm sitting in Cambridge with the eye of Hurricane Irene staring right at me, I can't help but feel that a ray of sunlight has just pierced the clouds.

This isn't the end of Glik's case, of course.  The First Circuit's opinion is based on the facts as alleged on the face of Glik's complaint, and the case now goes back to the District Court where Glik will be required to prove those facts.  One can only assume that his audiovisual recording will help.  But an opinion this strong can only help to halt the epidemic of photographer and videographer arrests that has been sweeping the country.

Response to an op-ed about rich liberals

This op-ed in Forbes is really weird. First, the author spouts a lot of Ayn Rand stuff that could have come out of Atlas Shrugged. And he attacks Warren Buffet who, recently, surpassed George Soros as the most hated billionaire by arch-conservatives.

But then he writes stuff that I have been trying to tell everyone:

Buffet is only the most famous of the richest liberals in recent U.S. history; others include FDR, the Kennedys, Ted Turner, Bill Gates, George Soros, and Jamie Dimon. Working on Wall Street in the 1980s I found the richest to be the most left-leaning, and nothing like the stereotypical “country club Republicans” we’re all told about. Those most sympathetic to capitalism weren’t CEOs and bankers but street vendors, truck drivers, waitresses, and barbers. During the 2008 election season America’s richest investors, including many hedge fund moguls, gave their money mainly to candidate Barack Obama.

Although wealthy pro-capitalists also exist (see the Koch brothers), they’re a distinct minority – indeed, the only minority liberals prefer to attack than coddle. Many polls show the wealthier to be more statist than capitalist, and data from campaign contributions confirm the basic pattern.

That’s right. But what does he prove by pointing this out? If most billionaires are liberals, maybe it’s because they know something about being billionaires the he doesn’t? Maybe billionaires know better than anyone else that they didn’t create billions of dollars of value themselves and that their wealth is a result of transferring value from the real value creators who are toiling away at five figure salaries (or some at low six-figure salaries)?

The liberal billionaires feel guilty about their value-transferred wealth, while the conservative billionaires like the Koch brothers make a show of believing in Ayn Rand because they are trying to convince themselves as much as anyone that they are entitled to their good fortunes.
The author of the op-ed goes on about the rich liberals:

Leftists hope this little secret will remain a secret, since it defies their populist cries for class warfare and mocks the hate speech they spew at “millionaires and billionaires, Big Oil, hedge funds and corporate jet owners.” These types are hardly the GOP’s puppet-masters, as is blithely assumed; in truth the “fat cats” tend to be solidly pro-Democrat. Since the typical voter doesn’t know this, class warfare rhetoric can still easily induce him to reject the GOP.

Is it leftists trying to keep this secret? I don’t think so. I think that conservatives want to keep this secret because it goes against their belief that billionaires are billionaires because they personally created billions of dollars of value. It seriously weakens their argument that billionaires themselves don’t believe they created billions of dollars of value.

Let’s back up in the op-ed and examine why the author is wrong about recommended policies:

In [Buffett’s] op-ed, complaining about the disparity between effective tax rates on the rich, with incomes derived mainly from investments (taxed at 15%) than salaries, and effective tax rates on those with small (or no) portfolios, with incomes derive mostly from salaries (taxed at 0% or up to 35%, depending on level), Buffet ignores the fact that taxes paid by rich investors constitute double and often triple taxation. Sums invested were retained after prior tax payments (on ordinary income). Thus the rich investor pays 15% on dividends and capital gains in addition to the higher rates he already paid on previously-earned ordinary income – that is, 35% if earned in the past decade and higher still (50%-90%) if earned during the 1950s, 1960s or 1970s.

I have previously stated in my blog that I support the 15% tax rate for passive investors in corporations (or possibly some better-implemented means of addressing the issue of double taxation). Unfortunately, this distinction doesn’t get highlighted enough by either side of the political debate.
However, very very few of the super-rich got to be super-rich by passively investing their own money. (I am reminded of the old joke. One guy asks the other, “how did you make a billion dollars in the stock market?” The other guys answers “easy, I started with two billion dollars.”)

Most people who are rich from investing (such as Warren Buffett) got rich by investing other people’s money and taking a cut off the top for themselves. Yes, I believe that the money these people make should be treated as ordinary income and taxed at the same rate as someone who works as an employee. They really aren’t that much different than commissioned salesmen, and salesmen have their commissions taxed as ordinary salary income (which means it’s subject to full income tax plus FICA taxes).

Other people get rich from being active investors in businesses. And I think we need to stop over-praising business owners. People start businesses to make money and not to be altruistic. I don’t think that there’s anything wrong with wanting to make money, but there’s nothing especially noble about it either (especially if it involves value transference and not value creation). They should be taxed at the same rate as people who work as employees. One may, in fact, consider every person who has a job to be a business owner; employees are in the business of selling their own services. Just as with the owner of a business who reports his income on a schedule C or a schedule K or a form 1120, the employee may have had to invest a substantial amount of money in his business in the form of college education, but unlike the more highly-praised “business owner” he doesn’t even get to deduct the cost of education as an expense against his income.

Some people think I have abandoned belief in free markets (whatever that means), but it’s not true. I truly do believe that markets do a good job of allocating resources. Which is why I believe that all economic income should be taxed at the same rate. That way, everyone will focus on how to maximize their income rather than doing stuff for the sake of lowering their income taxes. In an ideal income tax system, to lower one’s income taxes would be the same as lowering one’s true income and that’s not something anyone would ever want to do.

* * *

Also, when I’ve previously blogged about Warren Buffett, people have criticized him for giving his money away to a private charity rather than the federal government.

Three years ago I wrote that we should eliminate tax deductions for charitable donations, and I haven’t changed my mind about that.

And just because Buffett says some stuff about income taxes that I agree with doesn't mean he's a paragon of virtue. But it’s funny how libertarian conservatives do like to look at rich people as paragons of virtue, which was Ayn Rand’s viewpoint, and the Buffett editorial has created cognitive dissonance in these people who now feel the need to demonize Buffett for disagreeing with them. So they say he’s a hypocrite for not giving his money to the federal government, or that he is a hypocrite for setting up his businesses in such a way as to minimize the taxes he pays. But how has Buffett behaved differently than anyone else in his social class?

The decade's biggest scam

By Glenn Greenwald

The Los Angeles Times examines the staggering sums of money expended on patently absurd domestic "homeland security" projects: $75 billion per year for things such as a Zodiac boat with side-scan sonar to respond to a potential attack on a lake in tiny Keith County, Nebraska, and hundreds of "9-ton BearCat armored vehicles, complete with turret" to guard against things like an attack on DreamWorks in Los Angeles.  All of that -- which is independent of the exponentially greater sums spent on foreign wars, occupations, bombings, and the vast array of weaponry and private contractors to support it all -- is in response to this mammoth, existential, the-single-greatest-challenge-of-our-generation threat:

"The number of people worldwide who are killed by Muslim-type terrorists, Al Qaeda wannabes, is maybe a few hundred outside of war zones. It's basically the same number of people who die drowning in the bathtub each year," said John Mueller, an Ohio State University professor who has written extensively about the balance between threat and expenditures in fighting terrorism.

Last year, McClatchy characterized this threat in similar terms: "undoubtedly more American citizens died overseas from traffic accidents or intestinal illnesses than from terrorism."  The March, 2011, Harper's Index expressed the point this way: "Number of American civilians who died worldwide in terrorist attacks last year: 8 -- Minimum number who died after being struck by lightning: 29."  That's the threat in the name of which a vast domestic Security State is constructed, wars and other attacks are and continue to be launched, and trillions of dollars are transferred to the private security and defense contracting industry at exactly the time that Americans -- even as they face massive wealth inequality -- are told that they must sacrifice basic economic security because of budgetary constraints.

Despite these increasing economic insecurities -- actually, precisely because of them -- the sprawling domestic Security State continues unabated.  The industry journal National Defense Magazine today trumpets: "Homeland Security Market ‘Vibrant’ Despite Budget Concerns."  It details how budget cuts mean "homeland security" growth may not be as robust as once predicted, but "Lockheed Martin, General Dynamics, Boeing and Northrop Grumman . . . have been winning more contracts from DHS"; as a Boeing spokesman put it: "You’ll still continue to see domestically significant investment on the part of the government and leveraging advances in technology to stand up and meet those emerging threats and needs.”

Of course, the key to sustaining this Security State bonanza -- profit for private industry and power for Security State officials --  is keeping fear levels among the citizenry as high as possible, as National Defense expressly notes, and that is accomplished by fixating even on minor and failed attacks, each one of which is immediately seized upon to justify greater expenditures, expansion of security measures, and a further erosion of rights:

Polls still show that there is increasing public concern about another terrorist attack. It is this fear and an unrealistic American perception of risk that will continue to propel some aspects of the market, analysts say. . . .

Small-scale attacks, whether successful or not, will continue to prompt additional spending, the market analysts at Homeland Security Research Corp. say. They point to the failed 2009 Christmas plot of a man trying to blow up a flight to Detroit with explosives sewn into his underwear and the attempted car-bombing in Times Square early the next year. Though unsuccessful, these events led to immediate White House intervention, congressional hearings and an airport screening upgrade costing more than $1.6 billion.

The LA Times, while skillfully highlighting these wasteful programs, depicts them as some sort of unintended inefficiencies.  That is exactly what they are not.  None of this is unintended or inefficient but is achieving exactly the purposes for which it is designed.  That's true for two reasons.

First, this wastefulness is seen as inefficient only if one falsely assumes that its real objective is to combat Terrorist threats.  That is not the purpose of what the U.S. Government does.   As Daniel Weeks explains today, the Congress -- contrary to popular opinion -- is not "broken"; it is working perfectly for its actual owners.  Or, as he puts it, "Washington isn't broken -- it’s fixed":

Our problem today is not a broken government but a beholden one: government is more beholden to special-interest shareholders who fund campaigns than it is to ordinary voters. Like any sound investor, the funders seek nothing more and nothing less than a handsome return -- deficits be darned -- in the form of tax breaks, subsidies and government contracts.

The LA Times, and most people who denounce these spending "inefficiencies," have the causation backwards: fighting Terrorism isn't the goal that security spending is supposed to fulfill; the security spending (and power vested by surveillance) is the goal itself, and Terrorism is the pretext for it.  For that reason, whether the spending efficiently addresses a Terrorism threat is totally irrelevant.

Second, while the Security State has little to do with addressing ostensible Terrorist threats, it has much to do with targeting perceived domestic and political threats, especially threats brought about by social unrest from austerity and the growing wealth gap.  This Alternet article by Sarah Jafee, entitled "How the Surveillance State Protects the Interests Of the Ultra-Rich," compiles much evidence -- including what I offered two weeks ago -- demonstrating that the prime aim of the growing Surveillance State is to impose domestic order, preserve prevailing economic prerogatives and stifle dissent and anticipated unrest.

Pointing out disparities between surveillance programs and the Terrorist threat is futile because they're not aimed at that threat.  The British Government, for instance, is continuing its efforts to restrict social media in the wake of the poverty-fueled riots that plagued that country; as The New York Times reports today, it is secretly meeting with representatives of Twitter, Facebook, and the company that owns Blackberry "to discuss voluntary ways to limit or restrict the use of social media to combat crime and periods of civil unrest."  That revelation prompted taunting condemnations of British tyranny from China and Iran, both of which have been routinely excoriated for surveillance abuses and Internet suppression of the type increasingly common in the West.

Meanwhile, much of the anti-Terrorism weaponry in the U.S. ends up being deployed for purposes of purely domestic policing.  As the LA Times notes: those aforementioned BearCats are "are now deployed by police across the country; the arrests of methamphetamine dealers and bank robbers these days often look much like a tactical assault on insurgents in Baghdad."  Drones are used both in the Drug War and to patrol the border.  Surveillance measures originally justified as necessary to fight foreign Terrorists are routinely turned far more often inward, and the NSA -- created with a taboo against domestic spying -- now does that regularly.

Exaggerating, manipulating and exploiting the Terrorist threat for profit and power has been the biggest scam of the decade; only Wall Street's ability to make the Government prop it up and profit from the crisis it created at the expense of everyone else can compete for that title.  Nothing has altered the mindset of the American citizenry more than a decade's worth of fear-mongering  So compelling is fear-based propaganda, so beholden are our government institutions to these private Security State factions, and so unaccountable is the power bestowed by these programs, that even a full decade after the only Terrorist attacks on U.S. soil, its growth continues more or less unabated.

Ideas & Trends; Help Wanted Invoking the Not-Too-High-IQ Test

By MIKE ALLEN

WANTED: a few not-so-bright cops.

That is the official hiring policy in this former whaling village, where Police Department officials refused to grant Robert J. Jordan a job interview because they considered him to be too smart, then waged a three-year court fight to protect their right to favor mediocre applicants.

And won.

The City of New London contends that applicants who score too high on a pre-employment test are likely to become bored in patrol jobs, and leave the force soon after the city has paid to train them. Similar cutoffs, it turns out, are frequently used by employers when they are looking for workers who must follow rigid procedures, including bank tellers, customer service representatives and security guards.

In 1996 Mr. Jordan scored 33 out of 50 on the exam, which is used by 40,000 employers across the country, including National Football League teams for potential draft choices. That was 6 points too high to qualify for an interview with the New London police.


When Mr. Jordan heard about other people being hired even though he hadn't been called, he went to the Police Department to protest that he felt sure he must have passed. He says he was curtly informed that he did not ''fit the profile,'' which litigation revealed was a score of 20 to 27.

''Bob Jordan is exactly the type of guy we would want to screen out,'' said William C. Gavitt, the deputy police chief, who interviews candidates. ''Police work is kind of mundane. We don't deal in gunfights every night. There's a personality that can take that.''

This month, a Federal judge in New Haven has ruled that the practice was constitutional since the city treats all smart would-be officers the same, and thus did not discriminate against Mr. Jordan. ''Plaintiff may have been disqualified unwisely but he was not denied equal protection,'' Judge Peter C. Dorsey of the United States District Court wrote.

Mr. Jordan, 48, is a life-insurance salesman who had dreamed of a second career protecting and serving, with an eye on the pension. He said he was astounded that he could be shut out on the basis of brain power, but not gender, sexual orientation or race.

''Being reasonably intelligent does not make you part of a protected class,'' he said, chuckling at his new command of legalese. For a certified wise man, Mr. Jordan is remarkably modest about his academic achievements, volunteering that it took him 26 years to get a bachelor's degree in literature from Charter Oak State College in New Britain, Conn. ''I'm eminently trainable,'' he said. ''I'm not up there with Mozart.''

At first the decision was greeted as a great punch line in New London, a city of 27,000. But as the news sunk in, many people said the rule was insulting to their police force, and nonsensical at a time when law-enforcement officers must deal with complicated social problems.

''Your average dunderhead is not the person you want to try to solve a fight between a man and his wife at 2 A.M.,'' said Nick Checker, 35, a local playwright. ''I'd rather have them hire the right man or woman for the job and keep replacing them than have the same moron for 20 years.'' Millie McLaughlin, 82, the lunch lady at Harbor Elementary School, worries that pupils will think that ''if they study too hard, they won't get a job.''


And Gilbert G. Gallegos, the national president of the Fraternal Order of Police, said that besides reinforcing keystone Kop stereotypes, the city's stance was self-defeating. ''The better the caliber of the police officer, the fewer problems you have in the community.''

Mr. Jordan had run afoul of turnover rates, which have been the subject of decades of study by management theorists. The publisher of the test, Wonderlic Inc. of Libertyville, Ill., has a section in its ''User's Manual'' warning clients about the cost of replacing workers who quit because they become dissatisfied with repetitive work. ''Simply hiring the highest scoring employee can be self-defeating,'' the manual says.

Wonderlic's president, Charles F. Wonderlic Jr., said variations of the 12-minute test used in New London have been given to 125 million people since his grandfather founded the company in 1937. Mr. Wonderlic said hundreds of employers have used his suggested maximum scores to exclude overly qualified applicants for positions where creativity could be a detriment. ''You can't decide not to read someone their Miranda rights because you felt it would be more efficient, or you thought they knew them already,'' Mr. Wonderlic said.

On the other hand, an expert witness for Mr. Jordan was paid $350 an hour for his conclusion that patrol work is ''cognitively complex and intellectually demanding.'' The expert, Frank J. Landy, a psychologist in Walnut Creek, Calif., pointed to the demands of such modern practices as community-oriented policing as an indication of ''the range and challenge of tasks performed by a typical patrol officer.''

MR. Jordan said he would appeal the ruling if his lawyers are willing to continue the case now that he has used up his savings. In the meantime, he is supplementing his insurance business by working for $26,000 a year -- $15,000 less than he would make as a New London patrolman -- as a state prison guard. ''In those dormitories, there's 110 inmates and one of you,'' he said. ''Your mouth better be connected to your brain.''

While those with badges and guns are called New York's finest, they will continue to be New London's fair to middling: New London officials say they plan to keep using the test to fend off smarty-pants.

Battle for the California Desert: Why is the Government Driving Folks off Their Land?

RealNetworks crushes Dutch webmaster for hyperlink

The vendor's lawsuit is over a link to a competing freeware pacakge

By Brenno de Winter

RealNetworks has sued the owner of a website in The Netherlands for displaying a hyperlink to a competing freeware package. As the company seeks compensation for its claimed losses, the 26-year-old man is borrowing money from family to survive.

The case started in 2010 when RealNetworks demanded that the computers belonging to Hilbrand Edskes and his family be confiscated. A Dutch judge granted this in an ex-parte ruling, based on an alleged violation of copyright law and trademark law. The company claims that Edskes was hosting the infringing software. The move to secretly obtain the order was meant to ensure that evidence wasn’t deleted.

Edskes has a website, Codecpack.nl, that links to a wide variety of freeware programs. One of these is Real Alternative, a competitor of the mediaplayer RealPlayer from RealNetworks. RealNetworks alleges that the software violates their trademarks and copyright, and it wants to be compensated for all downloads via Codecpack.nl.

However, Edskes wasn’t hosting the software, but just redirected to other sites for the actual download. The complaint turned out to be based on a hyperlink to the software. To date there have been two court sessions, and in December Edskes will have to testify under oath.

There is a heavy pricetag attached to the case. So far Edskes has incurred more than €66,000 in legal fees. He says the costs cut his savings, hindering him from buying his own house. If he loses the case Dutch law requires him to cover all legal fees of RealNetworks. According to documents Webwereld.nl has studied these costs are nearly €75,000.

RealNetworks claims Edskes failed to remove the link to the software, and the reference in the DNS directories existed after February 12, 2010. However, the hosting provider checked backups and confirmed the removal of the link. The company that confiscated the computers has confirmed the immediate removal of the link. Unclear is the exact date the DNS reference disappeared, since backup cycles take longer. RealNetworks alleges the infringement was ongoing for 43 days and thus Edskes ought to pay €210,000 in fines. Edskes claims DNS caching is to blame for the delay.

It is remarkable that RealNetworks is going after Edskes. The software is available at many locations. The documents seen by Webwereld also show that the company is unaware of who the real creator of Real Alternative is. When asked a series of questions on the matter the company, through their Dutch legal firm, refused to comment. Questions will be answered only when the court has ruled, "no matter what the outcome is."

Dangerous Cybercrime Treaty Pushes Surveillance and Secrecy Worldwide

by Katitza Rodriguez

As part of an emerging international trend to try to ‘civilize the Internet’, one of the world’s worst Internet law treaties--the highly controversial Council of Europe (CoE) Convention on Cybercrime--is back on the agenda. Canada and Australia are using the Treaty to introduce new invasive, online surveillance laws, many of which go far beyond the Convention’s intended levels of intrusiveness. Negotiated over a decade ago, only 31 of its 47 signatories have ratified it. Many considered the Treaty to be dormant but in recent years a number of countries have been modeling national laws based on the flawed Treaty. Moreover, Azerbaijan, Montenegro, Portugal, Spain, and the United Kingdom are amongst those who have ratified within the last year. However, among non-European countries, only the U.S. has ratified the Treaty to date, making Canada and Australia’s efforts unique. The Treaty has not been harmless, and both Australia and Canada are fast-tracking legislation (Australia's lower house approved a cybercrime bill last night) that will enable them to ratify the Treaty, at great cost to the civil liberties of their citizens.

Leaving out constitutional safeguards

Australia’s invasive bill highlights one of the fundamental flaws of the Convention on Cybercrime: the Treaty’s failure to specify proper level of privacy protection necessary to limit the over-broad surveillance powers it grants law enforcement agencies. This creates problems in countries like Australia since, as the Australia Privacy Foundation points out, Australia lacks the legal constitutional safeguards afforded to many other democratic countries:

The CoE Convention has to be read within the context that applies in CoE countries – where there are substantial and actionable constitutional protections for human rights. The absence of any such countervailing protection for human rights in Australia makes it completely untenable for the Convention to be implemented in Australia without very substantial additional provisions that achieve a comparable balance.

Bills proposed in Canada (read here and here) are also affected by the Convention’s flaws as they adopt the lowest possible standard of protection against many of the invasive powers they grant. The bills provide law enforcement access to sensitive data on the mere suspicion it might be useful to an investigation. Indeed, at times they leave out the safeguards altogether, as noted in a letter from Canadian privacy scholars and civil society organizations:

[the legislation] will give state agents the power to access ...highly sensitive personal information, even where there is no reason to suspect it will assist in the investigation of any offense...What [this] facilitates, simply put, are unjustified and seemingly limitless fishing expeditions for private information of innocent and non‐suspicious Canadians.
Gag orders in place of oversight: Cultivating a culture of secrecy

The Convention’s most systemic flaw is that it seeks to impose invasive surveillance powers without legal protections. Aside from failing to specify adequate safeguards, it also leaves out the types of oversight mechanisms necessary to ensure its broad powers are not abused. Worse, the Convention takes active steps to reduce oversight and transparency by calling for limitations on when individuals can and cannot be notified that they are being surveilled upon.

The Australian bill even criminalizes any attempt to disclose the fact that the powers it grants to law enforcement have been used to spy on an individual. These gag orders will prevent anyone from disclosing the existence and content of interception warrants, all but ensuring innocent individuals will never know their civil liberties have been violated:

...it should be possible for individuals to find out that their communications have been subject to a preservation order or disclosed to law enforcement agencies once there is no longer any prejudice to an ongoing investigation.

Nigel Waters, Australia Privacy Foundation, Parliamentarian hearing on the Cybercrime Bill.

Proposed Canadian legislation also paves the way to blanket and perpetual gag orders that will apply by default to the most invasive of the seizure powers it authorizes. These gag orders can insulate abuses of power --when innocent people are surveilled for no good reason--and they will never find out nor will be able to challenge the abuse of their rights, even in situations where there is no longer any risk to an ongoing investigation.

The far-reaching powers this legislation puts in place, if adopted at all, should be accompanied by equally far-reaching oversight regimes, not gag orders. Instead of preventing abuses from ever seeing the light of day, individuals should be notified when they have been surveilled, and the extent, nature and frequency of such surveillance must be subject to rigorous external oversight.

Tamir Israel, staff attorney, Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic.

Blanket gag orders are strongly disfavored under U.S. law, and at least one U.S. court of appeals has found a similar gag order provision partially unconstitutional. A provision of the PATRIOT Act permitted the government to obtain electronic communication transaction records from an Internet Service Providers without a court order. The law imposed a gag order on “National Security Letter” recipients, with extremely limited judicial review that required courts to accept the FBI’s assertions as true and placed the burden on the ISP to challenge the gag order after it had been issued. As EFF argued, such gag orders stifle free expression, and without any judicial oversight, the government was free to do what it wanted. The court agreed that the gag order provision was unconstitutional as written, but it construed the gag rules narrowly so as to pass First Amendment muster. The court found that the U.S. Justice Department could adopt additional procedures to cure the remaining defects—a result that EFF disagrees with because it is Congress’s job to write laws.

Forcing service providers to record your online activity

Countries are also using the Convention to put in place powers aimed at forcing service providers to store customer information for extended periods of time. While the Convention itself foresees targeted preservation orders in scenarios where there is a reason to believe the information would otherwise be vulnerable to loss or modification, Australian and Canadian bills ignore this important limitation. Also, while the Convention envisions a distinction between orders forcing service providers to preserve data they have already collected and orders aimed at forcing service providers to intercept and record data in real time, the misuse of proactive or ‘ongoing’ preservation orders aims to undermine this distinction.

In the U.S. and in Canada, for example, there have been cases where preservation powers have been misused to proactively compel service providers to retain data such as email or text messages that are not yet in their possession or control. Proactive preservation force service providers to record data they would never have otherwise retained, effectively bypassing legal protections in place for real-time electronic interceptions. As the U.S. DOJ notes in its manual on seizing electronic communications:


...should not be used prospectively to order providers to preserve records not yet created. If agents want providers to record information about future electronic communications, they should comply with the electronic surveillance statutes discussed in Chapter 4.

Instead of attempting to avoid such problems, the Australian bill embraces this confusion, and expressly grants law enforcement the right to order ‘ongoing preservation’. This, combined with the complete lack of any obligation to ensure preservation orders are narrowly targeted to capture relevant data at risk of deletion, opens the door to blanket retention orders aimed at real-time interception of communications services on a mass scale:

The Australian law, for example, is phrased in such broad terms that it could be applied indiscriminately, without any assurance that it will only be used to preserve data that is at risk of being destroyed:

The Bill could require an Internet Service Provider to preserve all stored communications (e.g. traffic and content data) for a telecommunications service (e.g. email, text messaging, mobile phone) for a specified period of time. Unless our concerns about the meaning of a ‘service’ are addressed, then under an ongoing domestic preservation notice, a Commonwealth agency could arguably request that a major carrier such as Telstra or Optus, preserve all emails used on its service for a 30 day period.

Australia Privacy Foundation Submission to the Parliament.

The proposed Canadian legislation also fails to ensure preservation demands will be used in a targeted manner and is likely to lead to voluntary retention of personal information that would not otherwise have been kept by telecommunications service providers.

Convention premised on outdated concepts of online data

The flaws inherent in the Convention itself are exacerbated by the fact that it was drafted over ten years ago and much has changed since then. The Convention was premised on the notion that ‘traffic data’ (data generated by computers as a by-product of online interactions) is ‘less sensitive’, and so should be more readily accessible to law enforcement. That was then, and this is now: Today’s ‘traffic data’ can include such sensitive information as your otherwise anonymous online identity or your social network of contacts. Mobile companies and our Internet services providers are now recording our whereabouts at every moment, and we are leaving far more detailed footprints that reveal sensitive information of our daily lives. Sensitive data of this nature warrants stronger protection, not an all-access pass.

Other things have changed in the online environment as well. The ongoing move towards cloud computing means that more and more of our information will be stored online. Nowadays, countless millions are trusting web-based email services such as Google Gmail to store years worth of private correspondence, and cloud services such as Dropbox or Google Docs store your most private documents. The Treaty could not envision this reality when it was drafted in 2001. Governments must now think carefully about what the Treaty’s increased law enforcement powers will mean for citizen rights in this new digital context.

Judge says warrant required for cell phone location data

By Timothy B. Lee

In recent years, the courts have struggled to decide whether the government needs a warrant to access historical records about a cell phone user's location. Some courts have found that when users turn on their cell phones, they "voluntarily" transmit their location to their cell phone providers and thereby waive any expectation of privacy.

On Monday, Judge Nicholas Garaufis of the Eastern District of New York soundly rejected this line of reasoning. The federal government had asked the courts to order Verizon Wireless to turn over 113 days of location data about a suspect's cell phone. It did so under a provision of the Stored Communications Act that only requires law enforcement to show that the records are "relevant and material to an ongoing criminal investigation."

Does the government violate the Constitution when it obtains location data without meeting the Fourth Amendment's "probable cause" standard? Some courts have found that it does not. But in a 22-page opinion, Judge Garaufis analyzed and rejected these other courts' arguments, holding that law enforcement needs a warrant to obtain months of location data.

"The fiction that the vast majority of the American population consents to warrantless government access to the records of a significant share of their movements by 'choosing' to carry a cell phone must be rejected," he wrote. "In light of drastic developments in technology, the Fourth Amendment doctrine must evolve to preserve cell-phone user's reasonable expectation of privacy in cumulative cell-site-location records."

In recent decades, questions about how to apply the Fourth Amendment to electronic communications has focused on two key concepts. The third-party doctrine is the idea that Americans waive their Fourth Amendment rights when they disclose information to a business like a phone company or bank. For communications entrusted to third parties, the courts have traditionally extended Fourth Amendment protection only to the contents of communications—the audio of a phone call or the text of a letter—and not to non-content metadata about the call, such as the number dialed or the address on the envelope.

Some judges have tried to shoehorn cell phone location data into this analytical framework. But Judge Garaufis refused to do so, ruling that the distinction between content and non-content information didn't make sense in this context. "There is no meaningful Fourth Amendment distinction between content and other forms of information, the disclosure of which to the Government would be equally intrusive and reveal information society values as private," he wrote.

Instead, he offered two reasons to think the Fourth Amendment protects cell phone location data. First, the third-party doctrine should not apply to "widely used communication technologies in which service-provider intermediaries receive and store private user information incident to the service."

And second, "established normative privacy considerations support the conclusion that the reasonable expectation of privacy is preserved here." In other words, when a user signs up for a cell phone, he's not consenting to his cell phone provider disclosing a complete record of his movements to the government.

The decision is a refreshing change from the long line of cases that have tried to apply decades-old Fourth Amendment principles to 21st Century communications technologies. The extent of tracking enabled by cell phones was unthinkable when those earlier cases were decided. Judge Garaufis recognized that the legal standards need to evolve along with changing technologies. We hope other judges will follow his lead.

Why IP Addresses Alone Don't Identify Criminals

by Marcia Hofmann

This spring, agents from Immigration and Customs Enforcement (ICE) executed a search warrant at the home of Nolan King and seized six computer hard drives in connection with a criminal investigation. The warrant was issued on the basis of an Internet Protocol (IP) address that traced back to an account connected to Mr. King's home, where he was operating a Tor exit relay.

An exit relay is the last computer that Tor traffic goes through before it reaches its destination. Because Tor traffic exits through these computers, their IP addresses may be misinterpreted as the source of the traffic, even though the exit node operator is neither the true origin of that traffic nor able to identify the user who is. While law enforcement officers have seized exit relays in other countries, we weren't aware of any seizures in the United States until ICE showed up at Mr. King's home.

After the computers were seized, EFF spoke with ICE and explained that Mr. King was running a Tor exit relay in his home. We pointed out that ICE could confirm on the Tor Project's web site that a computer associated with the IP address listed in the warrant was highly likely to have been running an exit relay at the date and time listed in the warrant. ICE later returned the hard drives, warning Mr. King that "this could happen again." After EFF sent a letter, however, ICE confirmed that it hadn't retained any data from the computer and that Mr. King is no longer a person of interest in the investigation.

While we think it's important to let the public know about this unfortunate event, it doesn't change our belief that running a Tor exit relay is legal. And it's worth highlighting the fact that these unnecessary incidents are avoidable, and law enforcement agents and relay operators alike can take measures to avoid them in the future.

First, an IP address doesn't automatically identify a criminal suspect. It's just a unique address for a device connected to the Internet, much like a street address identifies a building. In most cases, an IP address will identify a router that one or more computers use to connect to the Internet. Sometimes a router's IP address might correspond fairly well to a specific user—for example, a person who lives alone and has a password-protected wireless network. And tracking the IP addresses associated with a person over time can create a detailed portrait of her movements and activities in private spaces, as we've pointed out in a case in which the government is seeking IP addresses of several Twitter users in connection with the criminal investigation of Wikileaks.

But in many situations, an IP address isn't personally identifying at all. When it traces back to a router that connects to many computers at a library, cafe, university, or to an open wireless network, VPN or Tor exit relay used by any number of people, an IP address alone doesn't identify the sender of a specific message. And because of pervasive problems like botnets and malware, suspect IP addresses increasingly turn out to be mere stepping stones for the person actually "using" the computer—a person who is nowhere nearby.

This means an IP address is nothing more than a piece of information, a clue. An IP address alone is not probable cause that a person has committed a crime. Furthermore, search warrants executed solely on the basis of IP addresses have a significant likelihood of wasting officers' time and resources rather than producing helpful leads.

In the case of Tor, the police can avoid mistakenly pursuing exit relay operators by checking the IP addresses that emerge in their investigations against publicly available lists of exit relays published on the Tor Project's web site. The ExoneraTor is another tool that allows anyone to quickly and easily see whether a Tor exit relay was likely to have been running at a particular IP address during a given date and time. The Tor Project can also help law enforcement agencies set up their own systems to query IP addresses easily. These simple checks will help officers concentrate their investigative resources on tracking down those actually committing crimes and ensure that they don't execute search warrants at innocent people's homes.

If you run an exit relay, consider operating it in a Tor-friendly commercial facility instead of your home to make it less likely that law enforcement agents will show up at your door. Also follow the Tor Project's advice for running an exit relay, which includes setting up a reverse DNS name for your IP address that makes it clear your computer is running an exit relay.

To learn more about the legal issues surrounding Tor, read EFF's Legal FAQ for Tor Relay Operators.

What Idiot Wrote The Patent That Might Invalidate Software Patents? Oh, Wait, That Was Me'

We recently wrote about a surprising Federal Circuit (CAFC) ruling that might open the door to invalidating a lot of software patents. We received an an interesting comment on the post a few days later from John Pettitt:

So I was thinking - great they invalidated software patents, lets see what crappy patent written by an idiot they picked to do it - then I realized the idiot in question was me :-)

Not sure how I feel about this.

John - inventor of the patent in question.

Pettitt is now running an interesting operation called Free Range Content, which helps companies syndicate content easily. However, a while back, he was the named inventor on patent 6,029,154, describing a "Method and system for detecting fraud in a credit card transaction over the internet." We reached out to Pettitt to ask him a few questions about his views on the patent system and he kindly agreed.

Given his comment, calling it "great" that software patents could be invalidated, we wanted to know if he was completely against software patents. Not surprisingly (and here we agree with him), he notes that the issue is more complex than that:

It's a complex issue. I don't think they are inherently bad, however the loose examination standards and a lack of guidance from the courts let a lot of bad patents through. Patents are meant to protect innovation so they should be held to a high standard. Unfortunately the patent industry relies far too much on patent prior art and ignores the vast corpus of open material. The result is that many patents look stupid on their face to anybody 'skilled in the art.'

This is a good point and one we've raised many times before. So many patents that are issued are ridiculed by people actually skilled in the art, demonstrating how they never should have been issued. But because the USPTO focuses much more on "prior art" (i.e., "is this new?" rather than, "is this obvious?") all sorts of obvious stuff gets patented.

Given that this was his patent, we wondered if his views towards patents had changed over time, and he noted, not really:

It hasn't change much. I've never been a big fan of the broad swath of business method patents and even less of a fan of the process for creating and litigating patents. That said, it's the world we live in. So, like every other Silicon Valley entrepreneur, I file patents.

This is something we hear all the time from almost every entrepreneur in Silicon Valley. Patents feel like a "necessary evil," but no one feels like they need them. This should really wake up Congress. They always talk up how patents help and protect entrepreneurs, but the reality is that they're a complete nuisance for most.

Given that it's his patent and he seemed surprised about it, we wondered if he even knew it was involved in a lawsuit. He noted that he has no relationship with any of the parties any more. While he noted that he knew his patent was involved in a lawsuit somewhere, he didn't know that it had reached the appeals court, which was part of the surprise. We also asked if he ever expected that a patent of his would be central to a key ruling about software patents, and he admitted it never crossed his mind:

No. honestly I expected some of the more extreme software patents to be the test cases.

We closed with the big question. One of the key reasons why CAFC rejected the key claims was because they were merely "mental processes" that someone could do with a pencil and paper, and thus didn't require any actual machine. Noting his stated mixed feelings about this result, I asked how he felt about this reason for rejection, and here he dove in with a bit more detail:

This is where it gets interesting. If you go down this route, any patent that results in purely a change in stored information is invalid. I don't think that would be a good outcome. Taking my patent as an example: yes, you could do everything it says in your head. In fact, that’s how I came up with the idea. However for a practical application of the idea you have to implement it in a computer system. Doing it by hand is too slow. This leads to the interesting question: if I build a machine with the code burned into ROM, making it a dedicated tangible device that could only do fraud detection, would that be ok? What about if it produces a tangible result (say printing a fraud warning?). Now if I put the same code on a general purpose computer would that be ok? Compare it to a medical device that takes metabolic readings and alarms if they go out of bounds: You could do the same by sitting a nurse down to watch the patient, but the automated device only processing information is clearly patentable under current rules. As computing becomes pervasive and everything becomes computer controlled or computer mediated it's still important to be able to protect original, non-obvious, ideas.

This is a fair response, and it's one of the key reasons why I've also been hesitant to fully agree with those who wish to carve out software patents. It just seems like something that would be a lot more difficult in practice (though there could be a few ways to do it).

But that doesn't mean the system isn't really, really broken, and Pettitt outlined the details of the problem and a potential solution, from his point of view as an entrepreneur, an inventor and a patent holder:

The problem today is that it's expensive to litigate individual patents and in many cases it's cheaper to pay up than to litigate even if the patent is clearly junk. I think the solution to the software patent issue might include some or all of the following:

• Expedited review of new and disputed patents by a panel of experts in the field with a high bar for validity.
• Shorter lifespan for software patents (7-10 years?)
• End the venue shopping for lawsuits and impose meaningful punitive damages for the assertion of claims that clearly don’t apply (similar to anti SLAPP statutes)
• Patents are meant to foster innovation by protecting the inventor and then upon expiry providing a library of information for others to build on. To this end, going forward, if a patent doesn’t actually tell you enough information to understand and build the invention, it shouldn’t be valid.

The "panel of experts" is similar to what I suggested recently in my "how to fix the patent system" post. I also really like some form of extending anti-SLAPP type laws to bogus patent suits. As we've pointed out in the past, it's incredibly difficult to get a totally bogus patent lawsuit dismissed without it first costing you a ridiculous amount of money. Other types of lawsuits are much easier to get dismissed. Why not patents? I also like the idea that weak disclosures should invalidate a patent, since that would kill a bunch of patents, but I do wonder how you put that into practice. If anything, it seems like the kind of thing that should be solved at the beginning -- in that a patent examiner shouldn't approve a patent that doesn't really teach anything. As for shorter terms for "software patents," we're back to how do you define a software vs. hardware patent.

Still, thanks to John for taking the time to talk. We're so constantly told by patent system supporters that only patent holders should be allowed to comment on the patent system (a claim that's complete nonsense, of course), so it's nice to speak to one (of many) who sees many of the current anti-innovation problems of the system.