20110130

Patterns of Misconduct: FBI Intelligence Violations from 2001 - 2008

Executive Summary

In a review of nearly 2,500 pages of documents released by the Federal Bureau of Investigation as a result of litigation under the Freedom of Information Act, EFF uncovered alarming trends in the Bureau’s intelligence investigation practices. The documents consist of reports made by the FBI to the Intelligence Oversight Board of violations committed during intelligence investigations from 2001 to 2008. The documents suggest that FBI intelligence investigations have compromised the civil liberties of American citizens far more frequently, and to a greater extent, than was previously assumed. In particular, EFF’s analysis provides new insight into:
Number of Violations Committed by the FBI
  • From 2001 to 2008, the FBI reported to the IOB approximately 800 violations of laws, Executive Orders, or other regulations governing intelligence investigations, although this number likely significantly under-represents the number of violations that actually occurred.
  • From 2001 to 2008, the FBI investigated, at minimum, 7000 potential violations of laws, Executive Orders, or other regulations governing intelligence investigations.
  • Based on the proportion of violations reported to the IOB and the FBI’s own statements regarding the number of NSL violations that occurred, the actual number of violations that may have occurred from 2001 to 2008 could approach 40,000 possible violations of law, Executive Order, or other regulations governing intelligence investigations.
Substantial Delays in the Intelligence Oversight Process
  • From 2001 to 2008, both FBI and IOB oversight of intelligence activities was delayed and likely ineffectual; on average, 2.5 years elapsed between a violation’s occurrence and its eventual reporting to the IOB.
Type and Frequency of FBI Intelligence Violations
  • From 2001 to 2008, of the nearly 800 violations reported to the IOB:
    • over one-third involved FBI violation of rules governing internal oversight of intelligence investigations.
    • nearly one-third involved FBI abuse, misuse, or careless use of the Bureau’s National Security Letter authority.
    • almost one-fifth involved an FBI violation of the Constitution, the Foreign Intelligence Surveillance Act, or other laws governing criminal investigations or intelligence gathering activities.
  • From 2001 to 2008, in nearly half of all NSL violations, third-parties to whom NSLs were issued — phone companies, internet service providers, financial institutions, and credit agencies —contributed in some way to the FBI’s unauthorized receipt of personal information.
  • From 2001 to 2008, the FBI engaged in a number of flagrant legal violations, including:
    • submitting false or inaccurate declarations to courts.
    • using improper evidence to obtain federal grand jury subpoenas.
    • accessing password protected documents without a warrant.

Introduction

EFF’s analysis of recently disclosed documents provides new insights into the Federal Bureau of Investigation’s unlawful surveillance of Americans during intelligence investigations conducted between 2001 and 2008.
In response to EFF FOIA requests issued in 2008 and 2009, the FBI released reports of violations made to the Intelligence Oversight Board (IOB) — an independent, civilian intelligence-monitoring board that reports to the President on the legality of foreign and domestic intelligence operations. The nearly 2,500 pages of documents EFF received include FBI reports to the IOB from 2001 to 2008. The reports catalog 768 specific violations arising from FBI monitoring of U.S. citizens, resident aliens, and non-residents.
Following a series of government investigations into FBI intelligence abuses, EFF submitted FOIA requests in an effort to obtain the FBI’s IOB reports. In 2007, the Department of Justice, Office of Inspector General released a report (pdf) documenting the FBI’s abuse of its National Security Letter (NSL) authority:1 the report found, in an audit of only 10% of national security investigations, that the FBI may have committed as many as 3000 NSL violations and had failed to report many of those violations to the IOB.2 A 2008 OIG report (pdf) confirmed and expanded the earlier report’s findings and critically assessed the steps taken by the FBI to address the abuse of NSLs.3
Following the second OIG report in 2008, EFF submitted FOIA requests to eleven federal agencies and agency components requesting all reports of intelligence violations made to the IOB from 2001 to 2008. EFF submitted subsequent requests the following year for violations reported to the IOB from 2008 to 2009. In July 2009, after many agencies failed to respond to the request, EFF filed suit against seven defendants — including the CIA, NSA, Department of Defense, Department of Homeland Security, Department of Justice, Office of the Director of National Intelligence, and Department of State — demanding the agencies comply with the law and produce the requested documents. In December 2009, the Court ordered the agencies to begin processing EFF’s request. In July 2010, two years after EFF’s initial FOIA request, the FBI began its release of documents. Over three separate installments in July, August, and October 2010, the FBI released nearly 2,500 pages of documents related to reports of intelligence violations to the IOB.
The documents released to EFF constitute the most complete picture of post-9/11 FBI intelligence abuses available to the public. Among other findings, EFF’s analysis of the documents shows that, from 2001 to 2008, significant delays occurred in the reporting of FBI violations to the IOB. The analysis also provides new insights into the type and frequency of violations committed by the Bureau. Most violations fell into one of three broad categories: first, FBI failure to comply with oversight guidelines; second, abuse of the FBI’s authority to issue National Security Letters; and, third, the FBI’s failure to carry out investigations within the bounds of the Constitution or other federal statutes governing intelligence-gathering. Finally, EFF’s analysis concludes that the FBI may have committed as many as 40,000 violations in the 10 years since the attacks of 9/11.

The Intelligence Oversight Board

The Intelligence Oversight Board "was created in 1976 by President Ford in response to recommendations made by the Rockefeller Commission calling for a Presidential-level body with specific oversight responsibilities for the legality and propriety of US intelligence activities.”4 The Commission’s recommendations came in the wake of a series of congressional reports that revealed illegal and abusive intelligence activities targeting American and foreign citizens. These reports found that intelligence agencies had intercepted and read Americans’ mail, performed surveillance on civil rights leaders and other dissidents, and had orchestrated assassination attempts on foreign leaders.
In light of the Commission’s recommendation, President Ford established the IOB to provide an independent review of intelligence activities to better safeguard citizens’ civil liberties against these types of abusive practices. The IOB consists of five civilian members, all with top-level security clearances, selected by the President to serve on the IOB from the larger intelligence-monitoring body, the President’s Intelligence Advisory Board (PIAB).5 The IOB’s mission is to "oversee the Intelligence Community’s compliance with the Constitution and all applicable laws, Executive Orders, and Presidential Directives."6 The IOB must then report to the President those violations the Board believes "may be unlawful or contrary to an Executive Order or presidential directive." 7 Since its creation, the vast majority of the IOB’s reports and investigations have remained secret.
Slight modifications to the IOB’s authority and structure have occurred since its creation in 1976, but the IOB’s oversight capacity remained largely unchanged for nearly 30 years. In the years following the attacks of 9/11, however, the Board’s role within the intelligence community was diminished in several ways. First, from 2001 to 2003, President Bush failed to appoint advisers to serve on the IOB.8 Even when advisers were appointed, however, the IOB continued to provide little real oversight: the IOB did not forward a single instance of intelligence misconduct to the Attorney General until 2006, despite having received notice of several hundred violations.9 Further, in 2008, President Bush significantly weakened the IOB’s oversight capacity by removing its ability to refer violations to the Attorney General for criminal investigation.10 President Bush also removed the IOB’s authority to oversee intelligence agency general counsel and eliminated the requirement for quarterly agency reporting to the IOB.11
EFF’s analysis of FBI reports to the IOB confirms the perceived inefficacy of the IOB’s oversight from 2001 to 2008. Significant delays between violations occurring and their eventual reporting rendered the IOB’s oversight capacity entirely impotent. On average, nearly two-and-a-half years passed between the occurrence of an FBI intelligence violation and its eventual reporting to the IOB. When a violation was reported within the FBI internally, on average, six months still passed before the Bureau reported the violation to the IOB, despite the Bureau’s requirement to report IOB violations on a quarterly basis. In light of these significant gaps between the occurrence of a violation and its eventual reporting to the IOB, it seems unlikely that the IOB diligently fulfilled its intelligence oversight responsibilities for most of the past decade.
After taking office, President Obama rolled back some of the Bush Administration’s changes to the IOB’s authority, but the function and effectiveness of the Board still remains in question. In an October 2009 executive order, President Obama largely reversed the changes made to the IOB’s oversight authority, and nine appointments have been made to the larger President’s Intelligence Advisory Board.12 Nevertheless, the White House has not disclosed the composition or membership, if any, of the IOB, which continues to call into question the legitimacy of current intelligence oversight efforts.

FBI Intelligence Violations Reported to the IOB

As noted above, in EFF’s review of nearly 2,500 pages of documents released by the FBI, EFF uncovered alarming trends in the Bureau’s intelligence investigation practices from 2001 to 2008. The documents suggest the FBI’s intelligence investigations have compromised the civil liberties of American citizens far more frequently, and to a greater extent, than was previously assumed. Broadly, these documents show that the FBI most frequently committed three types of intelligence violations — violations of internal oversight guidelines for conducting investigations; violations stemming from the abuse of National Security Letters; and violations of the Fourth Amendment, Foreign Intelligence Surveillance Act (FISA), and other laws governing intelligence investigations. Also, based on statements made by government officials and the proportion of violations occurring in the released reports, EFF estimates the FBI may have committed as many as 40,000 intelligence investigation violations over the past ten years.

Violations of Internal Oversight Guidelines

The first category of violation occurring with the most frequency involved the FBI’s failure to comply with internal oversight guidelines for conducting investigations. This type of violation ultimately resulted in investigations occurring without any meaningful oversight from either FBI Headquarters or the IOB. Of the reports filed with the IOB, violations of oversight guidelines accounted for over a third of all FBI violations.
The Attorney General Guidelines for FBI National Security Investigations and Foreign Intelligence Collection (NSIG)13(pdf) set forth various reporting rules, investigative requirements, and classification regulations for FBI agents to follow when conducting intelligence investigations.14 Originally issued in 1976 in the wake of the Church Committee’s revelations of frequent and serious FBI violations of citizens’ rights, the Guidelines task the Attorney General with ensuring that all government intelligence operations occur with sufficient oversight and within the bounds of the Constitution and other federal laws.15 For example, the NSIG requires that, upon initiating a new intelligence investigation, an agent report the investigation to FBI Headquarters within a specified period. Other guidelines set requirements for annual reporting of investigations, for information sharing practices between agencies, and — depending on the stage of the investigation and the level of internal authorization — for the investigative techniques FBI agents may use. Broadly, the Guidelines are intended to protect American citizens’ constitutional rights from intrusive and overreaching intelligence investigations.
In 2006, Department of Justice Inspector General Glenn Fine reported to Congress on FBI compliance with the Attorney General’s Guidelines for Domestic Investigations, a distinct set of guidelines from the NSIG governing FBI domestic investigations.16 The OIG investigation revealed "significant non-compliance with the Guidelines."17 EFF’s analysis demonstrates that the FBI's non-compliance extends to the NSIG, as well: the FBI frequently violated its own internal oversight protocols for national security and intelligence investigations. These violations ranged from a failure to submit notification of the investigation of a US person to FBI Headquarters for three years,

...to a failure to report a violation within 14 days of its discovery,

...to continuing to investigate a US person when the authority to do so had expired:

In all cases involving violations of the NSIG, though, the FBI only reported to the IOB when it determined the agency’s ability to supervise the investigation had been "substantially impaired."
In a 2005 Washington Post article, a senior FBI official dismissed the severity of this type of violation, noting that the "vast majority of the potential [violations] reported have to do with administrative timelines and time frames for renewing orders."18 But these guidelines are much more than mere "administrative timelines": the NSIG exists in order to prevent intelligence agencies from invoking "national security" to monitor citizens engaging in constitutionally protected activities — exactly the type of monitoring the FBI was engaging in at the time (pdf).19
Taken together, the FBI’s disregard for its own internal oversight requirements and the Bureau’s failure to timely report violations to the IOB undermined the safeguards established to protect civil liberties violations from occurring — the precise object of both the NSIG and the IOB.

Abuse of National Security Letters

In the reports disclosed to EFF, the second type of violation occurring with the most frequency involved FBI abuse of National Security Letters. These violations accounted for almost one-third of all reported violations. National Security Letters, or NSLs, are secret administrative subpoenas used by the FBI to obtain records from third-parties without any judicial review.20 While NSLs have existed since the late-1970s, the USA PATRIOT Act greatly expanded the intelligence community’s authority to issue NSLs. During the course of a terrorism or counterintelligence investigation, NSLs can be used to obtain just three types of records: (1) subscriber and "toll billing information" from telephone companies and "electronic communications services;"21 (2) financial records from banks and other financial institutions;22 and (3) consumer identifying information and the identity of financial institutions from credit bureaus.23
The FBI's systemic abuse of NSLs has been well-documented — both by Justice Department investigations and through litigation and scrutiny of FBI practices by EFF. As noted above, in reports from 2007 and 2008, the Inspector General found that, between 2003 to 2006, the FBI may have committed as many as 6,400 violations of the FBI’s NSL authority.24 According to the 2008 Report(pdf), from 2003 to 2006, the FBI issued nearly 200,000 NSL requests; almost 60% of the 49,425 requests issued in 2006 were for investigations of U.S. citizens or legal aliens.25
Earlier scrutiny of FBI practices by EFF also revealed abuses of the Bureau’s NSL authority. Documents obtained in a response to a 2007 EFF FOIA request showed that the FBI issued an NSL to North Carolina State University to obtain educational records, in clear violation of the FBI’s statutory authority.26 EFF also filed a lawsuit challenging the legality of an NSL issued by the FBI to the Internet Archive.27 The government formally withdrew the NSL request in 2008.
Analysis of the FBI’s IOB reports released to EFF show that the Bureau committed violations involving NSLs for telephone and electronic communications records twice as often as it did for financial and credit records. While the FBI has publicly disclosed the total number of NSLs issued annually,28 the Bureau has refused to release the frequency with which the three individual types of NSLs were issued. However, if the rate at which the FBI’s NSL violations occurred is an indicator of the frequency with which the three types of requests were issued, then, on average, the FBI likely issued approximately 25,000 NSL requests for telephone and electronic communications records, 12,500 requests for financial records, and 12,500 requests for credit information annually from 2003 to 2006.
Perhaps most startling, however, was the frequency with which companies receiving NSLs — phone companies, internet providers, banks, or credit bureaus — contributed to the FBI’s NSL abuse. In over half of all NSL violations reviewed by EFF, the private entity receiving the NSL either provided more information than requested or turned over information without receiving a valid legal justification from the FBI. Companies were all too willing to comply with the FBI’s requests, and — in many cases — the Bureau readily incorporated the over-produced information into its investigatory databases.
For example, in a violation reported in 2006, the FBI requested email header information for two email addresses used by a U.S. person:

In response, the email service provider returned two CDs containing the full content of all emails in the accounts. The FBI eventually (and properly) sequestered the CDs, notified the email provider of the overproduction, and re-issued an NSL for the originally requested header information; but, in response to the second NSL, the email provider again provided the FBI with the full content of all emails in the accounts.
Compounding the service providers’ problematic over-disclosure, the scope of the FBI’s authority to issue NSLs for electronic transactional records rests on unsettled and unclear legal grounds. The FBI’s NSL authority under the Electronic Communications Privacy Act (ECPA) allows the government to issue NSLs to traditional telephone service providers for non-content subscriber information and toll billing records — essentially, the name, address, length of service, and local and long distance call records.29 ECPA also provides the authority to issue NSLs for "electronic communications transactional records." However, the exact scope of this remains unclear: according to the DOJ, "electronic communications transactional records" include "those categories of information parallel to . . . toll billing records for ordinary telephone service."30 What, exactly, "those categories of information" constitute — possibly including, for example, email "header" information, IP addresses, URLs, or other information — remains unclear.
Third-parties not only willingly cooperated with FBI NSLs when the legal justification was unclear, however: they responded to NSLs without any legal justification at all. In one instance, when requesting financial records from a bank under the Right to Financial Privacy Act, the FBI used language and statutory citations from ECPA — a statute entirely unrelated to financial records — for its legal authority; nevertheless, the financial institution complied with the FBI’s legally deficient request:

In another series of violations, the FBI improperly requested and received full credit reports on subjects of counterintelligence investigations:

The Fair Credit Reporting Act, the statute providing FBI authority to request credit information using an NSL, however, only provides that authority in terrorism investigations.31 In other violations, the FBI failed to certify, as required by statute, that the NSL was relevant to a terrorism investigation and not being used to investigate constitutionally protected activities:

Again, despite the deficiency of the request, the third-party complied with the FBI’s NSL.
The FBI’s abuse of its NSL power has garnered much of the attention in the debate over the FBI’s abusive intelligence practices. What has not received as much attention, however, is the unwillingness of companies and organizations to guard their clients’ and users’ sensitive, personal information in the face of these NSL requests — whether the request was legally justifiable or not. Undeniably, if the FBI had complied with the law, the vast majority of NSL violations would never have occurred. Nevertheless, many of the businesses and organizations with which Americans trust their most private information are not applying any scrutiny to unjustifiable requests from the FBI and are not responding to valid requests in a responsible manner.

Violations of the Constitution, FISA, and Other Legal Authorities

The third category of FBI intelligence violations reported to the IOB, accounting for almost 20% of all reports, are violations of the Constitution, the Foreign Intelligence Surveillance Act (FISA), and other federal laws governing criminal investigations and intelligence-gathering activities. The first two types of intelligence violations committed by the FBI — violations of the NSIG and NSL abuse — were readily susceptible to categorization: these violations occurred with great frequency, and the violations were often repetitive and largely similar. On the other hand, violations falling into the third category were, in general, unique, and often flagrant, violations of a variety of legal authorities.
Violations falling into this third category were consistently the most brazen and egregious violations. For example, in two separate incidents, the FBI reported to the IOB that its agents had made false statements in written declarations to courts:

Another reported violation involved the FBI’s use of improper evidence to obtain grand jury subpoenas:

Other violations involved FBI’s use of a target’s username and password to access and download account information,

...and a warrantless search of password-protected files:

Of the reports reviewed by EFF, however, this type of violation was also generally the most redacted. One four-page report (on average, most reports are only one or two paragraphs) is almost entirely redacted,

with the exception of one paragraph that notes the "scope of [the FBI agent’s] alleged offenses" warranted reporting to the IOB: the three pages detailing the offenses, however, are entirely redacted:

Moreover, solely from the documents provided to EFF, it is evident that the FBI is withholding information on an inconsistent and arbitrary basis. For example, one IOB report, which details the issuance of NSLs without proper authority in the wake of the attacks on September 11th, was inadvertently included twice in the FBI’s document release: one is nearly entirely redacted; the other, almost entirely free from redactions:

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Numerous documents throughout the FBI’s release provide similar evidence of the agency’s inconsistent and arbitrary practice of redacting and withholding documents.
While the reports documenting the FBI’s abuse of the Constitution, FISA, and other intelligence laws are troubling, EFF’s analysis is necessarily incomplete: it is impossible to know the severity of the FBI’s legal violations until the Bureau stops concealing its most serious violations behind a wall of arbitrary secrecy.

Total Number of Violations from 2001 to 2008

Both the frequency and type of violations revealed in the FBI’s release to EFF are staggering. At a minimum, these documents already demonstrate the need for greater accountability and improved oversight mechanisms for American intelligence agencies. Yet, at the same time, the FBI continues to withhold critical information on the circumstances, rate of occurrence, and severity of these violations. And, if past experience is any guide, it is likely that the FBI is either withholding or failing to report many violations altogether.
In the absence of robust auditing and full disclosure from the Bureau, the only method for approximating the scope of the FBI’s abusive intelligence practices is to extrapolate from information contained within these releases and public statements made by government officials. The IOB reports, themselves, provide some insight into the sheer number of FBI intelligence violations. In previous litigation, EFF fought the FBI to release the IOB matter numbers that accompany every IOB report. While not every IOB "matter" is ultimately reported to the IOB, the numbers provide some indication of the number of violations investigated by the FBI. Based on IOB matter numbers on the reports released to EFF, it is clear that, at minimum, the FBI investigated approximately 7,000 instances of alleged misconduct from 2001 to 2008.
The actual number of violations that occurred from 2001 to 2008, however, is likely much higher. The Inspector General has acknowledged that as many as 6,400 potential NSL violations may have occurred between 2003-2006;32 if the proportion of violations released to EFF is representative of all FBI intelligence violations during that time period, then the number of total violations during that four year time-period may have topped 17,000 — or an average of 4,250 serious intelligence violations per year. In the ten years since 2001, that total could approach 40,000 possible violations.33

Conclusion

From 2001 to 2008, the FBI frequently and flagrantly violated laws intended to check abusive intelligence investigations of American citizens. While many hoped the era of abusive FBI practices would end with the Bush Administration, there is little evidence that President Obama has taken significant measures to change past intelligence abuses. Two years into his term, the President has not publicly disclosed any appointments to the IOB, and his campaign promise of unprecedented transparency within the executive branch has gone largely unfulfilled — especially within the intelligence community.
Congress, however, has an opportunity to remedy these abuses: portions of the USA PATRIOT Act expire in late February, and a bill has already been introduced in the House of Representatives to reauthorize it.34 Instead of simply rubber-stamping the intelligence community’s continuing abuse of Americans’ civil liberties, Congress should seize this opportunity to investigate the practices of the FBI and other intelligence agencies, and to demand greater accountability, disclosure, and reporting from these agencies. Until then, the FBI’s pattern of misconduct will undoubtedly continue.
  1. 1. DEPARTMENT OF JUSTICE, OFFICE OF THE INSPECTOR GENERAL, A REVIEW OF THE FEDERAL BUREAU OF INVESTIGATION’S USE OF NATIONAL SECURITY LETTERS (March 2007).
  2. 2. See R. Jeffrey Smith, FBI Violations May Number 3,000, Official Says, WASH. POST, Mar. 21, 2007.
  3. 3. DEPARTMENT OF JUSTICE, OFFICE OF THE INSPECTOR GENERAL, A REVIEW OF THE FBI’S USE OF NATIONAL SECURITY LETTERS: ASSESSMENT OF CORRECTIVE ACTIONS AND EXAMINATION OF NSL USAGE IN 2006 (March 2008). Even before the OIG’s official acknowledgement of FBI investigative abuses, EFF, other civil liberties organizations, and members of the media had documented numerous instances of improper government intelligence activities in the years following 9/11. For example, in 2005, a FOIA request seeking information about violations related to 13 national security investigations revealed numerous instances of FBI misconduct stemming from the Bureau’s newly expanded powers under the USA PATRIOT Act.
  4. 4. President’s Intelligence Advisory Board and Intelligence Oversight Board, PIAB History, http://www.whitehouse.gov/administration/eop/piab/history.
  5. 5. Id.
  6. 6. President’s Intelligence Advisory Board and Intelligence Oversight Board, About the PIAB, http://www.whitehouse.gov/administration/eop/piab/about.
  7. 7. See, e.g., Exec. Order No. 13462 (Feb. 29, 2008), available at http://www.fas.org/irp/offdocs/eo/eo-13462.htm.
  8. 8. John Solomon, In Intelligence World, a Mute Watchdog, WASH. POST, Jul. 15, 2007, available at https://www.washingtonpost.com/wp-dyn/content/article/2007/07/14/AR2007071400862.html.
  9. 9. Id.
  10. 10. Charlie Savage, President Weakens Espionage Oversight, BOS. GLOBE, Mar.14, 2008, available at http://www.boston.com/news/nation/washington/articles/2008/03/14/president_weakens_espionage_oversight/?page=full.
  11. 11. Id.
  12. 12. Charlie Savage, Obama Order Strengthens Spy Oversight, N.Y. TIMES, Oct. 29, 2009, at A16, available at https://www.nytimes.com/2009/10/30/us/politics/30intel.html.
  13. 13. A previous version of the NSIG, the Attorney General’s Guidelines for FBI Foreign Intelligence Collection and Foreign Counterintelligence Collection ("FCIG") is referenced in some of the documents released from earlier years. The NSIG replaced the FCIG in October 2003.
  14. 14. A partially declassified version of the guidelines is available at http://www.fas.org/irp/agency/doj/fbi/nsiguidelines.pdf.
  15. 15. See ELECTRONIC PRIVACY INFORMATION CENTER, THE ATTORNEY GENERAL’S GUIDELINES, available at http://epic.org/privacy/fbi/.
  16. 16. The FBI operates under two separate sets of guidelines issued by the Attorney General: one for domestic investigations, one for national security and intelligence investigations. For a thorough treatment of the gradual expansion of the Attorney General’s Domestic Guidelines, see EMILY BERMAN, BRENNAN CENTER FOR JUSTICE, DOMESTIC INTELLIGENCE: NEW POWERS, NEW RISKS (2011), available at http://www.brennancenter.org/content/resource/domestic_intelligence_new_powers_new_risks/.
  17. 17. Oversight of the Federal Bureau of Investigation: Hearing Before the Sen. Comm. on the Judiciary (May 2, 2006) (statement of Glenn A. Fine, Inspector General, U.S. Department of Justice), available at http://www.justice.gov/oig/testimony/0605.htm.
  18. 18. Dan Eggen, FBI Papers Indicate Intelligence Violations, WASH. POST, Oct. 24, 2005, available at https://www.washingtonpost.com/wp-dyn/content/article/2005/10/23/AR2005102301352.
  19. 19. See, e.g., DEPARTMENT OF JUSTICE, OFFICE OF THE INSPECTOR GENERAL, A REVIEW OF THE FBI’S INVESTIGATIONS OF CERTAIN DOMESTIC ADVOCACY GROUPS (September 2010), available at http://www.justice.gov/oig/special/s1009r.pdf (describing FBI surveillance of various American advocacy groups from 2001 to 2006).
  20. 20. See Electronic Frontier Foundation, National Security Letters, https://www.eff.org/issues/national-security-letters.
  21. 21. 18 U.S.C. § 2709.
  22. 22. 12 U.S.C. § 3414.
  23. 23. FBI has the authority to issue three different, but related, NSLs to credit agencies — an NSL pursuant to 15U.S.C. § 1681(u)(a) for the names of financial institutions with which the subject has an account; an NSL pursuant to 15 U.S.C. 1681(u)(b) for consumer identifying information; and an NSL pursuant to 15 U.S.C. § 1681(v) for a full credit report. The FBI may only request a full credit report while investigating international terrorism cases.
  24. 24. See Jason Ryan, FBI Search Abuses Could Number Thousands, ABC NEWS, Apr. 16, 2008, available at http://abcnews.go.com/TheLaw/DOJ/story?id=4661216&page=1.
  25. 25. DEPARTMENT OF JUSTICE, OFFICE OF THE INSPECTOR GENERAL, A REVIEW OF THE FBI’S USE OF NATIONAL SECURITY LETTERS: ASSESSMENT OF CORRECTIVE ACTIONS AND EXAMINATION OF NSL USAGE IN 2006 (March 2008), available at http://www.justice.gov/oig/special/s0803b/final.pdf.
  26. 26. See Electronic Frontier Foundation, Report on the Improper Use of an NSL to NC State University, https://www.eff.org/issues/foia/report-nsl-ncstate.
  27. 27. See Electronic Frontier Foundation, Internet Archive v. Mukasey, https://www.eff.org/cases/archive-v-mukasey.
  28. 28. DEPARTMENT OF JUSTICE, OFFICE OF THE INSPECTOR GENERAL, A REVIEW OF THE FBI’S USE OF NATIONAL SECURITY LETTERS: ASSESSMENT OF CORRECTIVE ACTIONS AND EXAMINATION OF NSL USAGE IN 2006 (March 2008), available at http://www.justice.gov/oig/special/s0803b/final.pdf.
  29. 29. See 18 U.S.C. § 2709(a).
  30. 30. See Department of Justice, Office of Legal Counsel, Requests for Information under the Electronic Communications Privacy Act (November 2008) at 3 n. 3, available at http://www.fas.org/irp/agency/doj/olc/ecpa.pdf.
  31. 31. See 15 U.S.C. § 1681(v).
  32. 32. See Jason Ryan, FBI Search Abuses Could Number Thousands, ABC NEWS, Apr. 16, 2008, available at http://abcnews.go.com/TheLaw/DOJ/story?id=4661216&page=1.
  33. 33. This figure is an estimate based, first, on the fact that a significant number of FBI violations went unreported, both internally and to the IOB; second, this estimate assumes the sample of violations reported to the IOB and released to EFF is representative of all violations that occurred from 2001-2011, including those that went unreported; third, the estimate assumes violations occurred at the same rate over time. In the reports released to EFF, roughly 33% were violations of the NSIG, 33% were NSL violations, and 20% were other violations (the remaining percentage of violations was too heavily redacted to categorize). The estimate is based on an extrapolation from the OIG’s estimate that 6,400 NSL violations occurred from 2003-2006. In the absence of robust FBI auditing and thorough oversight, however, estimates are the only reasonable method to approximate the scope of the FBI’s investigatory misconduct.
  34. 34. H.R. 67, To extend expiring provisions of the USA PATRIOT Improvement and Reauthorization Act of 2005 and Intelligence Reform and Terrorism Prevention Act of 2004 until February 29, 2012 (introduced Jan. 5, 2011), available at http://www.thomas.gov/cgi-bin/query/z?c112:H.R.67.

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Making Predictions for the Year 2030

by Aaron Saenz

We often cover the big names in futurism: Ray Kurzweil, Aubrey de Grey, Michio Kaku, etc, but what about the rest of us? Can’t we make predictions, too? Christian Henrik Nesheim is the author of the I Look Forward To blog and a self-described “layman” when it comes to understanding the years ahead. He recently published 11 Predictions for The World in 2030… – a small set of important changes he expects to see in the upcoming two decades. From poverty and longevity to space exploration and sex, Nesheim’s list covers a broad range of topics, and each prediction is supported by a previous story written on his site. So how does the layman do for his 20 year outlook? Well, I think he’s right on some points, dead wrong on others. Read his 11 statements below for yourself and see if you agree.

1. By 2030, learning a second language will no longer be necessary.
A tiny computer that fits in your ear, and translates what you hear into your own language? It’s not farfetched at all. In fact, all the requisite technology exists today, and all that’s missing is for someone to connect the dots.

Aaron: YES. Couldn’t agree more. Singularity Hub has been tracking universal translators for the past few years and they keep getting better and better. And cheaper. And on your phone. 2030 may be a conservative estimate as semi-effective translators are already here and are likely to get much better in the next 5-10 years. Not so sure about the “fits in your ear” comment as that will likely depend on user preference, but they’ll definitely be portable and easy to use.

2. By 2030, thousands, perhaps millions, of people will have a life expectancy of 150 years.
Aubrey de Grey says: I think we have a 50% chance of achieving medicine capable of getting people to 200 in the decade 2030-2040. Presuming we do indeed do that, the actual achievement of 200 will probably be in the decade 2140-2150 – it will be someone who was about 85-90 at the time that the relevant therapies were developed.

Aaron: MAYBE. As people have commented on Nesheim’s blog, life expectancy is really a broad statistical measurement of a population, and maybe isn’t the best way to phrase this prediction. Some better questions to ask: Will we have 90 years old in 2030 who can hope to make it to 150 before they die? What about 9 year olds? Either way, I think this one is a gray area (no pun intended, Aubrey). Regenerative medicine is getting better, and technologies like stem cells could help repair and replace damaged bodies, drastically extending our lifespans. However, when we developed vaccinations, antibiotics, and sanitation we extended life expectancy considerably, only to run into cancer, heart disease and other age-related illnesses. I think we’ll be able to keep people alive longer by 2030, but 150 maybe be pushing it, even for a few thousand.

3. By 2030, only 2% of the world’s population will live in extreme poverty.
The eradication of extreme poverty will happen in our lifetime. In 1990, 42% of the world’s population lived on less than $1.25 (constant 2000 dollars, PPP). In 2005, that number had fallen to 25%. The UN estimates that by 2020, only 10% of world citizens will live in absolute poverty. My bold estimate is that by 2030, only one in 50 will.

Aaron: NO IDEA. I really really hope this one comes true, but I feel very unqualified to comment on its chances. Yes, extreme poverty rates have declined in the last few decades and the UN hopes that trend to continue. There are upcoming technologies that could speed up this process and institutions like Singularity University that are seeking to employ those technologies in new businesses in the years ahead. Still, geo-politics and economics are not my strong suit, and I bow out of making a firm call on this one.

4. By 2030, the best food will be grown in skyscrapers.
Soil-based agriculture is so passé. Nothing short of an agricultural revolution is underway, spurred on by visionary Dr. Dickson Despommier of Columbia University. His plan is to build 30-story greenhouses in cities around the world, which will allow us to produce more food, for less money, in a healthier way, while freeing up arable land for nature.

Aaron: MAYBE. Ok, certainly some food is going to be grown indoors and in cities in the years ahead – this is already happening now. Singularity Hub has covered how urban agriculture is becoming more important around the world and urban aquaculture holds promise to advance the field even farther. I’m not sure if indoor food will be “the best” however, and I wouldn’t predict it would exist in one kind of architecture over another. Maybe we’ll have skyscrapers full of farms, or maybe we’ll have basements with gardens. It depends a lot on energy costs, especially the availability of cheap light and heat (via solar power?). I think we’ll see more urban agriculture in 2030, but I’m not sure it will be because we need to free up arable land for nature. We’re just going to need a way to get cheap nutritious food to city dwellers as efficiently as possible.

5. By 2030, driverless cars will be commonplace.
I’m sure you’ve dreamed it: Getting into a car, kicking your shoes off and leaning back with a good movie and a cold beer while your self-driven car takes you safely to your destination, without your having to worry about directions or pedestrians. Well, the technology we need to make that car exists.

Aaron: MAYBE. Will we have automated cars that can match humans in performance by 2030? Oh hells yes. I think we’ll have them by 2020 if not sooner. Will such cars be ‘commonplace’ by 2030. [Non-committal mumbling] …Look, I’ve ranted about this before when discussing Google’s robot car, and Stanford’s recent driverless race up Pike’s Peak: engineers will make automated cars that can driver us safely, the real question is whether or not we’ll accept them on the roads. Social and legal issues are the big hurdles here in my opinion, and I’m uncertain when they’ll be cleared. Nesheim’s estimate of 2030 is totally reasonable, but one child killed by an automated car, or one well-publicized legal battle over robot-related damages, and we could be set back by years. On a related note: commonplace where? Different nations are likely to adopt automated vehicles at different times and in different applications.

6. By 2030, 18 cities will have more than 20 million inhabitants, and New York City will be the 16th largest city in the world.
I actually think this is a conservative estimate. Although global population is increasing at a staggering pace, the world’s cities have an ever higher growth rate. At present, 50% of the world’s population live in urban areas, but by 2030 that figure is projected at 60%. And 93% of that urban growth will occur in developing countries.

Aaron: YES. I totally agree in spirit. Urbanization is likely to continue for years to come, and it will take major changes in society (the dominance of digital interactions over physical ones?) to curtail the trend. Now, as to whether there will be 18 cities with 20M+ and where NYC will rate in the list – I honestly think those sorts of details are a little unimportant. Besides “cities” are socio-political constructions and are divided, aggregated, and redefined all the time. Maybe Nesheim should say “metropolitan areas”? Doesn’t really matter. 60% urban population is the key figure, and it seems almost inescapable.

7. By 2030, automated flying drones will transport humans.
Probably a lot sooner, actually. Developing a well functioning delivery drone network will pave the way for confidence in a practical network of drones delivering people. Humans have notoriously poor navigation skills in three-dimensional environments, so unmanned aerial vehicles seem a safer option than those prone to human error.

Aaron: YES, but only if we take a broad definition of what counts as an “automated drone”. Look at a modern commercial aircraft and you’ll find many automated systems, including those that handle landing and flight corrections (i.e. flying the plane). Considering the sophistication of modern military drones, I think it’s reasonable to assume aircraft are only going to become more capable of robotic flight in the future. By 2030 we’ll probably have many aircraft whose human pilots are really just a backup system. Like automated cars, however, I have my doubts as to when we’ll have the social and legal guts to accept unmanned aircraft carrying human passengers. So yes, we’ll have automated drones that can pilot people, but I’m not sure under what circumstances we’ll let them.

My biggest criticism with this prediction, actually, is that Nesheim links to an article about a small electrically powered drone. I have a hard time believing that anything that runs on batteries is going to be carrying people in the next twenty years. Many of the micro aerial vehicles that qualify as “automated drones” are only capable of ten minutes of flight. Less when lifting heavy loads. Flight is one of the places where I think we’ll be dependent on fossil fuels for a long time, which means any plane is a flying bomb, which means we’re going to want human pilots in charge of them, if only in name.

8. By 2030, space tourism will be common, and 40,000 humans will be working in orbit.
The Space Island Group, in cooperation with British Airways, is planning to build an international, multi-purpose, commercial space station which, to begin with, will include hotels, research facilities, gourmet restaurants, and sports arenas (for new zero-gravity sports) along with dozens of other uses which can’t be imagined today. SIG is but one of a handful of companies working on similar projects.

Aaron: NO…but I go back and forth on this one. The Xprize foundation has proven that private spaceflight can be encouraged, and there are several companies pursuing (and succeeding with) manned and unmanned missions to orbit. The history of spaceflight, however, seems to be a fairly tumultuous one. I’ve argued with friends over whether or not the first private spaceflight that results in a human death will cripple the industry or be suffered as a necessary part of the dream to conquer space. There are too many factors here for me to fully understand. My instincts say that Nesheim is wrong, but if you had asked me in 1950 if we would have put a man on the moon by 1970 I would probably have been pessimistic then as well. …Assuming that you could have asked a gamete its opinion on anything.

9. By 2030, most film actors will be out of work due to competition from cheap computer animated actors.
Computer Generated Imagery (CGI) technology will enable us to create movies with animated characters so lifelike that they become indistinguishable from humans, rendering actors (in film anyway) obsolete.

Aaron: YES (With a few caveats). First, from a certain point of view most ‘film actors’ are probably already underemployed. There are only ~150,000 actors, directors, and producers in the US. Does that count all the people who try and fail and try again to be actors? When we think of actors, we think of the famous ones, but most are not famous and struggle to find employment.

But let’s view this prediction in the right spirit: the rise of computer animated actors versus live actors. I know very little about how the entertainment industry really works, but I’m supporting Nesheim on this one. Already actors have a hard time competing with reality TV. Add in CGI that looks and acts more human and I think the profession is in for a rough future. In general I think the film industry is heading towards difficult times because of the growing importance of the internet as the medium for entertainment.

My caveats: we define ‘most’ as greater than 50%, and we ignore the term ‘cheap’. There will always be the need for some lives actors, and I think that one of the big changes that advanced CGI will bring is the ability for a few popular performers to be used as a template to create dozens of virtual characters. Instead of being in a few films each year, actors (via their virtual copies) could be in dozens. Or all of them. With the right technology you could have a cheap version of Al Pacino as a background extra in a movie. Instead of all actors loosing their jobs, think about this prediction as “only the most famous actors will be needed”. The end result is the same: most actors will be out of work. Still.

10. By 2030, China will have 250 cities with more than one million inhabitants.
Today, 90% of people in the UK and 80% of Americans live in cities, while in China only 46% do. The UK has five urban areas with more than one million inhabitants. The US has 37. China has 90. That’s today, and whereas the UK and the US have peaked in terms of urbanization, China is only half-way urbanized. The consultancy firm McKinsey predicts that China will have 220 cities with more than 1 million inhabitants by 2025.

Aaron: YES, but see my comments from number 6.

11. By 2030, a large number of people will have robot lovers.
This is perhaps my boldest prediction. When I ask guys if they’d get a robot girlfriend, most of them intuitively say no. They think robot and they think metal, wires, awkward motions and an empty stare. I’d say no to that too, if those were my associations with the word robot. But what if your robot partner looked, felt, sounded and even talked like a human? Robots that are physically indistinguishable from humans are only 15-20 years away.

Aaron: NO. Despite Nesheim’s claim that this is his “boldest prediction” it actually has some of the most ambiguous wording. This could already be true depending on how you look at it. Do we count the millions of people who buy “adult toys” every year? I guess the spirit of the prediction is that we’ll have humanoid robots that we can have sex with. Well, we’ve got that in some form already with “real dolls“. Those have sold hundreds of thousands. Does that qualify as “a large number of people”?

In my opinion, what people have sex with isn’t really about the believability of the object, it’s about the desires of the person. Humanoid robots are going to become more realistic in the next 20 years that’s certain. I seriously doubt that they’ll be physically indistinguishable from humans…and I seriously doubt people who want to have sex with non-humans will be bothered by that. Will more people be having sex with objects in the future. Almost certainly, but I’m not sure outsiders will ever consider such objects to qualify as ‘lovers’. We are going to make meaningful emotional connections with machines, but I think that will happen after we develop human level artificial intelligence, not before.

Also, on a side note: “When I ask guys if they’d get a robot girlfriend, most of them intuitively say no.” –Well, stop asking them in front of their human girlfriends!

So in summary: 4 Yes, 4 Maybe, 2 No, and 1 abstention. Not bad for a layman, but when taken in the spirit of the futurist’s intent most predictions will seem fairly reasonable. Any detailed examination, however, is going to give you more questions than answers. Almost all of the 11 statements above really belong in the “Maybe” category because almost all leave a lot of wiggle room. Phrases or terms like “no longer be necessary”, “the best”, and “commonplace” can be interpreted in different ways. There are some of the predictions above that could be achieved by a single success, but that are explained in way that suggests multiple successes. This isn’t a condemnation of Nesheim, it’s a critique of predictions in general. Even the best futurists make statements whose accuracy depends more on subjective opinions than objective facts.

What really interests me in Nesheim’s predictions aren’t their testability, or their accuracy, however, but rather their origin. For a while I’ve wanted to get an idea what the average person on the street feels about the future. Christian Nesheim is far from the average person, but he’s closer than the famous scientists and philosophers I discuss on a regular basis. With respect to Nesheim for all his hard work, his predictions about the future really could have been made by any of you. All you have to do is read about emerging technologies, look at some of the background science, and start making educated guesses. Predictions really are that easy.

Which is sort of a problem. It doesn’t take much to predict the future, and I’m uncertain how valuable such statements really are. I would love to know what the average person predicts about the future because I would love to have a baseline for comparison when I talk about Ray Kurzweil, Michio Kaku and the rest. If we all knew that digital books were coming by the early 21st century does it matter if the professional futurists predicted their arrival with accuracy? You have to look at the unexpected events and see how well those were foreseen by the experts.

So, please, add your own predictions for 2030 in the comments below. Or go add them on I Look Forward To. It doesn’t matter as long as you make a record of them somewhere public. Until we have an idea about collective expectation, we can’t really judge the individual futurists very well. And who knows, if 2030 rolls around and a majority of your predictions come true, you might be the next expert we all look to for answers.

Good luck.

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Ohio Mom Jailed for Sending Kids to Better School District

Kelley Williams-Bolar wanted to give her children a better life by sending them to school in the nearby majority-White school district where her father lives — and she went to jail for it. Now, as a convicted felon, helping her children will be even harder — she had been studying to become a teacher, but that dream may have ended as well.
Real justice requires that the punishment fit the crime; by any measure, this is cruelly unjust.
Please join us calling on Governor Kasich to take a public stand and do everything he can to right this injustice (including making sure that Williams-Bolar has the opportunity to become a teacher in Ohio). And please ask your friends and family to add their voices as well — it takes just a moment:
Kelley Williams-Bolar is a single mother of two daughters, and she is a teacher’s aide in Akron city schools who has been studying to become a teacher. According to Williams-Bolar, after their home in a housing project was burglarized, she decided to protect her daughters’ safety by sending them to school in neighboring Copley Township, where her father lives.1
Williams-Bolar claims that she maintained a part-time residence at her father’s home, but the school district didn’t see it that way. Neither did County Prosecutor Sherri Walsh, who charged Williams-Bolar with grand theft and falsifying records — a third-degree felony. The judge presiding over the case recognized the harshness of the felony charge and encouraged Prosecutor Walsh to offer a plea bargain for a lighter charge — but Walsh flatly refused.2
Williams-Bolar was convicted on the felony charge, and sentenced to 5 years in prison. The judge suspended all but 10 days of the jail time, instead ordering 2 years of probation and 80 hours of community service. She’s out of jail now, but the repercussions could last a lifetime: unless the felony is eliminated from her record, Williams-Bolar may be unable to earn her teaching certificate under Ohio law. Williams-Bolar is only a few classes away from earning her teaching certificate.3
Any parent could understand why Kelley Williams-Bolar did what she did to try to give her children access to opportunity. It’s tragic that families around America must make choices like this every day in order to ensure their kids are safe and well-educated. And it’s tragic that this family’s opportunity to succeed stands to be limited because a single mom chose to put her kids first.
With just a moment of your time, you can make clear to Governor John Kasich that you expect him to lead in ensuring real justice that’s proportional to the facts of the case. By speaking out, you’re not just standing with Williams-Bolar — you’re standing with every parent who doesn’t have access to great schools, and who must make difficult choices.
Please join our call for justice for Kelley Williams-Bolar. And when you do, please ask your friends and family to do the same.
Thanks and Peace,
-- James, Gabriel, William, Dani, Natasha and the rest of the ColorOfChange.org team
   January 28th, 2011

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Senators bash "telecom oligarchs," propose strict net neutrality bill

By Nate Anderson 

In the month since the FCC adopted its open Internet rules, most of the DC debate over net neutrality has focused on FCC overreach. Verizon sued the agency. MetroPCS sued the agency. Rep. Marsha Blackburn (R-TN) introduced a bill to strip the FCC of any authority to regulate Internet access.

But Sen. Maria Cantwell (D-WA) and Sen. Al Franken (D-MN) have another point of view: the FCC didn't go far enough. The pair yesterday introduced the "Internet Freedom, Broadband Promotion, and Consumer Protection Act of 2011" (PDF) to extend net neutrality to all forms of Internet access (including wireless).

"The recent FCC ruling on net neutrality does not do nearly enough to protect consumers, and this bill is designed to maintain a free and open Internet," Franken said in a statement when the bill was released. Last week, Franken made a speech in which he called net neutrality the "free speech issue of our time" and said that the FCC rules "will create essentially two Internets."

The new bill is strict with ISPs. In contrast to the vaguer language in the FCC's net neutrality order, the bill simply bans ISPs from doing all sorts of things, including:

(6) charg[ing] a content, application, or service provider for access to the broadband Internet access service providers' end users based on differing levels of quality of service or prioritized delivery of Internet protocol packets;

(7) prioritiz[ing] among or between content, applications, and services, or among or between different types of content, applications, and services unless the end user requests to have such prioritization...

(9) refus[ing] to interconnect on just and reasonable terms and conditions.

The bill also makes clear that it applies to all forms of Internet access, whether those IP packets come by wire, radio, or donkey caravan. Even "degrading" a user's access to legal content ("including fair use") is prohibited, and ISPs can't force subscribers to sign up for extra services like phone or video.

"The reason a seemingly technical issue such as net neutrality has become such a politicized fight is that the financial stakes are so high," said Cantwell.

"If we let telecom oligarchs control access to the Internet, consumers will lose. The actions that the FCC and Congress take now will set the ground rules for competition on the broadband Internet, impacting innovation, investment, and jobs for years to come. My bill returns the broadband cop back to the beat, and creates the same set of obligations regardless of how consumers get their broadband."

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20110129

Growing Up Games: When Will Mature, Mature?

By Leigh Alexander

We may have an M-rating for "adult content" in games, but that doesn't necessarily make them mature. What will it take for games to grow up?

It's a trickier question than meets the eye. As players, it's easy to yearn for more adult content in games. Part of this is curiosity–sex is always titillating on a base level, after all, but more than that, the interactivity and apparent potential for narrative depth that video games offer prompt an interest in how human fundamentals might show up in games.

Another part of it, though, is that we're eager to see some of our video games reach a level in theme and narrative that we can consider sophisticated, that has a place in conversation among grown-ups. Sure, some games have taken a few brave steps– but while wide audiences applaud the sophistication in how sex and violence are presented in today's film and television dramas, when Mass Effect came out in May 2008, it was not permitted even a tasteful moment by most of the mainstream press, and even gamers treated it like a novelty they could distill from the rest of the game's context.

Although BioWare's Ray Muzyka hoped that Mass Effect's sex scene would help lead the way to validating games as an art form, the disconnect here is that we're equating sex with maturity. To be fair, that's not necessarily an unfit thought pairing. As long as sex remains a fundamental part of human adulthood, it will play a role in sophisticated human interaction in entertainment narratives whether in games or elsewhere.

Defining Maturity
From Lara Croft to Grand Theft Auto, though, it seems video games have tossed in a pair of boobs and called themselves mature–but that's what adolescents do, not adults. Writer and designer Erik J. Caponi of Bethesda Softworks agrees: "We think of the word 'mature' as a rating more than we think of it as a narrative goal or a certain set of subject matter," he says.

"The word really has two meanings when we apply it to media. One is 'not appropriate for children' and the other is 'exploring subject matter in a sophisticated fashion,'" Caponi explains. "Ironically, the word mature when applied to games tends to have a very childish connotation."

As he aptly puts it, "Maturity does not come from the number of f-bombs you can manage to drop, but rather from the subject matter that you choose and how you explore it."

Dangerous Themes
Writers Guild of America award-nominated designer Keith Nemitz wanted to explore more sophisticated adult subject matter in his acclaimed indie Dangerous High School Girls in Trouble, a story-driven puzzle RPG that features teenage girls winning out against bullies and sinister mysteries.

But last month Nemitz came up against one of the primary obstacles to maturity in games: a reactionary audience offended by its themes. DHSGiT was pulled from casual games portal Big Fish Games due to an outcry from uncomfortable players who felt the game promoted bullying. The bigger issue around the game's takedown, however, was a late-game scene that asks the player character to protect her friend from an attempted rape by shooting the perpetrator in the head.

Fans of DHSGiT took issue with the tonal shift in what was generally a black-humored, somewhat lighter narrative up to that point, but most of the game's complainants at Big Fish had enough at the very idea of a scene that involved rape, murder and teenagers, period.

But Nemitz defends the scene's inclusion, explaining its role in the story. "It's a critical plot element," he says. "It serves two purposes: The primary purpose is to challenge the player with the true evil of rape, and to assert it is a situation where survival may require killing. The assault's realistic appearance in an otherwise fantastical narrative is meant to shock."

"Reactionaries crying out against this part of our game couldn't deal with the shock and therefore wanted to be protected from the game," he says. "My opinion."

Misperception And Risk
Bethesda's Caponi says situations like Nemitz's occur because even as the audience for games continues to expand, too many people still view them as childish. "In the current environment, there will always be a number of people who react negatively to the inclusion of sexuality or sexual themes in a game," he says. "And so long as the notion that games are exclusively for children persists in those people's minds, we can just expect that."

Video game publishing is already a high-risk proposition as it is, and conservative approaches to sexual content in games is just good business sense for publishers in the current environment. "The industry is about making money," Nemitz admits. "I'm an indie developer, but one of my goals is to earn a living. That means my products need to appeal to an audience large enough to pay the bills every month." In the end, Nemitz slightly edited the controversial scene in his game to make it much clearer to avoid misinterpretation of his intent.

But Caponi notes how comic books eventually earned their license to explore more adult themes as the perception that they're only for children began to fall away. "The public at large understood that like any art, some comics are suitable for children, and some aren't," he says.

"I think that this is happening more and more every day with games. And the more it does, the less risky telling mature stories will be, and designers will be able to explore those subjects without risking financial failure."

Still Growing

Unfortunately, a high-risk business climate and stodgy consumers aren't the only obstacles to grown-up games. It's easy to blame widespread political furore over Grand Theft Auto: San Andreas' hidden Hot Coffee scene or a Fox News' infamous Mass Effect "SeXbox" campaign of ignorance for the limitations placed on adult content in games– but a hard look at where games are on their evolutionary path shows that in many ways, games just aren't there yet.

Nemitz is blunt: "I think the majority of game designers aren't mature enough to make games with mature themes well," he says. "It's the difference between Uwe Boll and David Lynch. Most computer games deserve Uwe Boll to make movies of them. How many games are worthy of David Lynch?"

To be fair, games are quite young relative to other media, and the idea that games could be used to tell stories and provide more complex experiences than just twitch-jumping over pixel pits is even newer. With so much still in development, it's hard to blame games for acting like adolescents about mature content– they are adolescent, only just now beginning to learn how to express themselves.

"When you look at film, there are certain things we know we can expect from scenes. We have a sense of how graphic violence will be, we know roughly how sex will be shown," says Caponi. "In games, we haven't really established that language yet, so it's difficult to judge when you might be pushing things a bit further for effect, or when you're backing off of things to allow them to be understated."

In effect, games are just hitting puberty compared to the elegant ladies of film and the established and ageless scions of literature, who've had much longer to establish their unspoken language. "We have very little of that to go on," says Caponi. "Right now, that language is being developed. That's one of the reasons why I believe that this is a silver age for gaming. We're starting to come into our own, and there is a lot of exploration and experimentation to be done as our storytelling matures."

Why It Matters
With all of this complexity and challenge around sex and maturity in games, it's tempting to toss the issue out entirely. Why do we even need grown-up games? Can't they just be fun?

Plenty can, of course. But there's an appetite for sophistication in games as the audience that grew up stomping goombas now reaches adulthood, and yearns for games to grow with them. Part of that growth means the ability to derive emotional and intellectual sophistication from games, and sexuality can play a role.

"Sexuality can inspire any emotion, from love, to violence, to despair, to bliss, and I think that a willingness to approach it from a mature angle absolutely will help us create better stories," says Caponi. "Relationships inspire emotion, and emotion motivates both story and the player as a participant in that story."

Every player creates his or her own experience in a game, but creating relationships within the narrative can help players become more immersed and invested in the gameworld, Caponi says. Not only can complex adult storytelling enrich games, but sophisticated games have the potential to enrich storytelling as part of culture.

"One thing I am personally interested in as a narrative designer are the ways in which games are the only medium where the player can be an active participant in the relationships and narratives of a story," he says.

Possibilities For The Future
Nemitz believes that finding tactful, tasteful ways to push the limits can be a starting point for further maturation in games. "Writers and designers can readily implement mature themes without being shocking, and perhaps that is the best way to bring intellectual respect to the art of games," says Nemitz.

For an example of how this worked in the past, one can look to Old Hollywood's Production Code. It held sway over content in the movie biz from 1930 to 1968, providing moral guidelines over what was and wasn't allowed to be portrayed in films. In effect, it was censorship — editing out nude scenes, childbirth scenes and any kind of content that made "perversions" appear sympathetic, for just a few examples. It limited films, but ultimately it challenged directors to find new ways to portray maturity, and Nemitz believes that game designers now face the same challenges — and will end up benefiting from it in the same way.

"In one aspect, the old movie code may have helped to mature the art of film," he says. "Directors didn't back down on the content. They creatively worked around the code's limitations."

Whether or not audiences are ready for games to start pushing the envelope is a different matter. "We've been pounding visually gimmicky stuff into gamers for decades. Few have become hungry for enlightenment," says Nemitz. "People, especially Americans, are not ready to deal with mature content, because the system protects them from it. It is time, however, to expose them to it."

Caponi is more optimistic that audiences are "without a doubt" prepared to receive more adult content in games. "I think the audience has been ready for a long time," he says. "I look forward to the sort of stories that we'll see as developers expand their ability to tell mature stories."

Truly adult stories will need to evolve beyond a single sex scene in a game, and developers will need both resourcefulness and genuine maturity to craft nuanced, complex adult content. The adolescent years are always awkward — let's hope a healthy adulthood follows for video games.

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