Live from Austin!

New York Times:

“You can hear voices, you can operate under intermittent delusions, you can see rabbits in the road that aren’t there and still be legally sane [by New York standards].”

A US court has ruled that authorities cannot force people to incriminate themselves by divulging their encryption passwords.

This is in marked contrast to the UK, where the Regulation of Investigatory Powers Act (RIPA) makes it a crime to decline to hand over all your incriminating files if the police demand it. If the case doesn’t involve national security, you can be put in jail for two years. If it does, five years.

Of course, the authorities would only use that power if absolutely necessary to fight terrorism, right? Well, the first person to fall afoul of section III of RIPA was an animal rights protester. She claims she didn’t have any encrypted files.

Got any old encrypted e-mails for which you no longer have the key? The RIPA has no limit, they can demand keys for files years old. Lost or forgotten the key? Someone sent you something encrypted with the wrong key? Off to jail you go.

On September 20th, an unnamed woman was raped at gunpoint by four men.

A judge in Philadelphia has ruled that since the woman was a prostitute, it wasn’t gang rape—just “theft of services”.

AP reports:

Saying surfing the web is equivalent to reading a newspaper or talking on the phone, an administrative law judge has suggested that only a reprimand is appropriate as punishment for a city worker accused of failing to heed warnings to stay off the Internet.

In his decision, Spooner wrote: “It should be observed that the Internet has become the modern equivalent of a telephone or a daily newspaper, providing a combination of communication and information that most employees use as frequently in their personal lives as for their work.”

He added: “For this reason, city agencies permit workers to use a telephone for personal calls, so long as this does not interfere with their overall work performance. Many agencies apply the same standard to the use of the Internet for personal purposes.”

This is something I’ve been saying for a while in the periodic arguments over whether businesses should try and lock down the Internet to only “approved” sites. Do the same businesses search employees at the door to make sure they don’t bring in newspapers, magazines or mobile phones? Generally not. (If you work for the NSA, your mileage may vary.)

Slacking is a time-honored tradition. If you ban the Internet, people will spend their time talking about last night’s TV, making paper planes, or whatever.

Now, get back to work.

I just got a phone call from one of the lawyers involved in the Netflix class action lawsuit I wrote about a while back. Apparently my letter had caught his attention, and he wanted to discuss my objections to the proposed settlement in more detail. It turned out to be quite an interesting conversation.

I explained that the first issue was that I felt the proposed settlement gave far too much benefit to the legal firm, rather than the allegedly wronged customers of Netflix. I said that I understood that law firms took class action cases on a speculative basis, and that fines had to be large enough to hurt the companies sued, but that it seemed excessive for the wronged customers to get 1 month of better service that they would then have to cancel to avoid paying more, while the law firm got over $2 million cash.

He said that the settlement was the product of compromise, and that having to opt out of the increased service after a month was the way Netflix wanted it. I said that I didn’t doubt that, but that in the past Netflix had sent me a bonus DVD one month, as a reward or compensation for something I forget. So clearly there were other ways to compensate customers.

He said that yes, Netflix had done that, but that it had resulted in so many customer service queries from people not reading the accompanying explanation, and presumably worried that they had been silently upgraded, that Netflix had vowed never to do anything that way again. I conceded that it seemed entirely plausible to me that I was just atypical of the average Netflix consumer, in that I’m not easily confused by a bonus disc and I hate opt-out arrangements.

He mentioned that he’s had the same objections from many people writing to opt out. I’m guessing they’ve been surprised by the level of response. Maybe they’re calling partly to check up that the people opting out really do understand what they’re opting out of, and haven’t been suckered by a chain e-mail or something.

We also talked about the fundamental issue of why the lawsuit had been brought in the first place. I explained that I felt it was fairly frivolous to start with: in the real world, reasonable people understand that when something is advertised as ‘unlimited’, there are in fact usually some limits. The example I picked was an ‘all you can eat’ restaurant—when you pay for ‘all you can eat’, and the restaurant closes while you’re still eating, that’s not a reason to sue. “All you can eat” is not necessarily meant in a pedantic literal sense, and neither is “Unlimited DVD rentals”.

The counter-argument put to me was that the real issue wasn’t the lack of unlimitedness, but the alleged unfairness. It wasn’t that Netflix couldn’t actually deliver unlimited DVDs, it was that after a certain point, customers who had had fewer rentals that month got sent to the front of the queue—and the heavy customers had the sending of their next discs delayed as a result.

The lawyer said that to use my analogy, it was like the restaurant allowing the people who had had two slices of pizza to cut in line in front of me when I was going to get my seventh or eighth slice.

The thing is, I don’t think that would be particularly unfair. I might not be happy about it if someone grabbed the last slice of vegetarian pizza and I had to wait for a fresh one to be cooked, but I wouldn’t sue them over it. Growing up, at mealtimes the kid who had only had one serving was always given precedence of choice over the one who was on his third helpings.

I mentioned having heard about Netflix giving preferential treatment to low-volume customers ages ago. Again, from my point of view—which admittedly, may be biased by my being a low-volume customer—it seems to make good sense. If John is only getting 1 DVD this month, it’s pretty damn important to make sure he gets the one he wants, quickly. More important, I think, than making sure that Mike’s 8th DVD arrives just as quickly as his 1st.

I also mentioned the allegations a while back about Amazon offering worse prices to people who were regular customers, and similar cases of shops offering preferential treatment to customers who they believe are the most profitable for them. The lawyer talked about how those cases were different; he seemed to be trying to draw a clear distinction but I couldn’t quite grasp his reasoning. Maybe it was some subtle legal point, or maybe he was bluffing.

Anyway, it was all very amiable. I said I would be interested to see the outcome of the lawsuit, and that if it succeeded it would be interesting to see if companies would have to start putting disclaimers up saying something along the lines of “Your price may be worse than the price we’re offering other people, because we don’t think you make us enough money as a customer.”

(Oh, I don’t remember the guy’s name I’m afraid. I’m terrible with names, he said it once at the start and I completely forgot what it was by the end of the discussion.)

The 9/11 Commission recommended setting up an organization to help safeguard civil liberties. Sure enough the Bush administration has gone ahead and created a President’s Board on Safeguarding Americans’ Civil Liberties.

Ignoring for the moment the issue that civil liberties should, constitutionally, be protected for everyone and not just US citizens, I thought it would be interesting to take a look at the people who are being put in charge of safeguarding your freedoms.

• The Deputy Attorney General, James B. Comey.

  Quote from Comey: A court of the United States has no jurisdiction…to enjoin the president in the performance of his official duties.

  He also explained at length why he thought it was right that Jose Padilla was thrown in a military jail indefinitely and not allowed to talk to a lawyer, even though he is a US citizen and was not officially charged with any crime. Comey’s position was overruled by the Supreme Court, thank goodness.

• The Assistant Attorney General (Civil Rights Division), R. Alexander Acosta.

  Acosta seems to be one of the Good Guys, having (amongst other things) defended a Muslim student’s right to wear her head scarf at school.

• The Assistant Attorney General (Office of Legal Policy), Daniel J. Bryant.

  Bryant is a strong supporter of a Constitutional amendment to ban flag-burning. Need I say more?

• The Under Secretary for Border and Transportation Security at the Department of Homeland Security, Asa Hutchinson.

  Hutchinson was formerly head of the DEA, that bastion of concern for the civil liberties of the individual. He pushed the “drugs support terrorism” angle, and favored intensifying the War On (Selected) Drugs. He also supports Constitutional Amendments to ban flag burning and allow official school prayer, and supports banning abortion and gay adoption.

• The Assistant Secretary for Information Analysis at the Department of Homeland Security, General Patrick Hughes. He was a member of the 9/11 Commission, and wrote a series of articles on the theme of global threats to the USA and its interests abroad, for various audiences. His major focus in recent years has been building a massive information sharing network to ensure that law enforcement, homeland security and private contractors at federal, state and local level share information freely, so I’m sure he’ll have something to say about preserving your privacy.

• The Assistant Secretary (Policy), Directorate of Border and Transportation Security, part of the Department of Homeland Security; that would be a Mr C. Stewart Verdery, I believe.

  Quote from his nomination speech: We all remember well the bipartisan effort which spawned a host of responses to the terrorist attacks, including the PATRIOT Act and the creation of the Transportation Security Administration. Those days exemplified the kind of public service which is truly gratifying.

  His department is responsible for visa policy, and is pushing biometric passports—including forcing foreign countries to use biometric passports if they wish to take part in US visa waiver programs.

• The Officer for Civil Rights and Civil Liberties at the Department of Homeland Security, Daniel W. Sutherland. He’s another of the good guys, having written in favor of immigration reform and against mandatory biometric national IDs.

• The Privacy Officer at the Department of Homeland Security, Nuala O’Connor Kelly. She was the Chief Privacy Officer for…wait for it…DoubleClick. Joking aside, though, she seems to be on the side of light.

• The Counsel for Intelligence Policy, Department of Justice, James A. Baker III. You might recognize that name if you’ve seen Farenheit 9/11. He’s the Senior Counsel for the Carlyle Group, the 10th largest defense contractor in the US, heavily tied to ENRON and the Bin Laden family. He even has a bio page on the George Bush Foundation web site.

• The Under Secretary for Enforcement, Department of the Treasury, Stuart Levey. Coincidentally, he’s was a partner in James Baker’s law firm.

• The Assistant Secretary (Terrorist Financing), Department of the Treasury, Juan Zarate. His job focus has been on stopping the flow of cash to terrorists—while assuring Muslim charities that Bush administration policies were not intended to hurt them.

• The General Counsel, Office of Management and Budget. I think that’s Raymond J. McKenna. His office is part of the General Services Administration, responsible for helping to improve government efficiency by providing office space, office supplies, technology, and services.

  I must confess to being unclear why he’s on this particular committee.

• The Deputy Director of Central Intelligence for Community Management, Larry C. Kindsvater. He’s strongly in favor of reorganizing the US intelligence system, which is probably why he was picked.

• The Chair of the Privacy Council at the Federal Bureau of Investigation. I can’t find any record of a Privacy Council at the FBI; a search of their web site produces 0 hits.

• The General Counsel for the Central Intelligence Agency. These are the people who advise the CIA on the legality of their assassinations, foreign government coup attempts, and drug running.

  The CIA OGC web site doesn’t provide any information naming anyone who works there. They do mention that you can’t work for the CIA OGC in any capacity without a Top Secret clearance, polygraph test, and 6 month background screening. I believe the current General Counsel is still Scott W. Muller. Interestingly, Muller had no intelligence background before getting the job; his background was investigating white collar crime.

  Muller apparently thinks the PATRIOT Act didn’t go far enough. As he said at his nomination hearing:

  Well, let me start, Senator, by saying that I think the changes that were made in the U.S.A. Patriot Act were clearly necessary in light of the events of September 11 and I think have gone a long way toward creating at the operational level the kind of sharing and collaboration that this Committee and the Intelligence Community and the Bureau and law enforcement think need to occur. There’s a lot of work left to be done.

• The General Counsel for the National Security Agency. I believe this is still Vito T. Potenza, though obviously it’s very hard to find any information on who the NSA’s General Counsel is, or even who Mr Potenza is.

• The Under Secretary of Defense for Intelligence, Stephen Cambone. The Center for American Progress describe his qualifications as a fierce loyalty to Donald Rumsfeld and an unshakeable right wing ideology and note that he was responsible for sending Major General Geoffrey Miller to Iraq with orders to find more effective ways to interrogate prisoners.

• The General Counsel of the Department of Defense, William J. Haynes II

  Mr Haynes is the man who wrote the infamous memo listing “interrogation techniques” (i.e. torture) authorized for use at Guantanamo Bay, and was also involved in numerous other dubious legal arguments.

• The Legal Adviser at the Department of State, James H. Thessin. I can’t find much of anything about him.

• The Director of the Terrorist Threat Integration Center, John O. Brennan, a 23 year CIA veteran. His is the department which is supposed to glue together all the other departments and make sure that the left hand knows what the right hand is doing. It’s also the department that was blamed for embarrassing inaccuracies in the 2003 “Patterns of Global Terrorism” report. It was initially released to a fanfare of congratulation, as it showed that deaths from terrorist activity had fallen thanks to the Bush “War on Terror”. Then, the spurious figures were quietly revised to show that things had actually gotten worse. Brennan explained the errors by saying that their computers were too old and they were understaffed.

So, there we have it. Not a totally one sided panel, but definitely stacked carefully in a particular direction.

Last year, teachers’ aide Hope Clarke went vacationing in Yellowstone National Park. While she was there camping out, she was slightly negligent—she failed to put away a sealed bag of marshmallows after sipping hot chocolate around the campfire. This is viewed as bad behavior because, as we all know from TV, food attracts bears eager to steal pick-a-nick baskets. Perhaps bears can smell marshmallows through plastic, I don’t know. Anyway, rules are rules, and for her food storage crimes Ms Clarke was handed a fine for $50.

The next year, Hope Clarke booked a cruise ship vacation on Carnival’s ship “Fascination”. Little did she know that the wheels of justice were slowly turning back on dry land…

A federal database had flagged Clarke’s name, saying that she had never paid her $50 fine. A warrant for her arrest was issued automatically. Her devious cruise ship vacation was soon investigated by federal agents, and the dragnet began to tighten…

At 06:30 in the morning as the ship returned to port, federal agents burst into Hope Clarke’s cabin. They had traced her whereabouts and knew all about her chocolate and marshmallow crimes, and they immediately put her in handcuffs and turned her over to federal marshals. She was photographed, fingerprinted, and thrown into jail. That afternoon she was dragged into court in leg shackles.

It was at that point that U.S. Magistrate Judge John O’Sullivan noted that he had a copy of Clarke’s original citation on paper as part of the filings for the case, and it said that she had paid her $50 fine before leaving the park, as everyone fined in Yellowstone is required to do.

The Assistant US Attorney considered the matter, and conceded that there were some “discrepancies” surrounding the case. He suggested to the judge that Ms Clarke be released temporarily, and told to return at a later date to clear up the matter.

The judge ordered Clarke released, and apologized to her. A mere 2 hours later, after almost 9 hours in custody, Clarke was released. She was reunited with her fiancé, who admitted that he was the fiend who had left the marshmallows out. In fact, the only reason the feds had Hope Clarke’s name to start with, was that she’d used her credit card to pay the fine.

Sources: Billings Gazette, South Florida Sun Sentinel, etc.

More about the sequel to the “PATRIOT” act: it’s called the Domestic Security Enhancement Act. Amongst the planned improvements to the legal system:

• Law enforcement to be able to wiretap you for up to 48 hours without needing a warrant or court order.

• New ‘secret subpoenas’, where you can be compelled to testify and also prohibited from revealing to anyone that you’ve been served a subpoena.

• New search warrants, valid throughout the USA, to be issued if police accuse you of computer hacking.

• Using encryption in any way while committing a felony will add 5 years to the sentence.

• DNA database of suspected terrorists, and any non-citizens suspected of associating with organizations declared as terrorist.

• All consent decrees which limit state law enforcement surveillance, and which date from before 9/11, to be terminated at a stroke.

• US citizens can be expatriated (have their citizenship terminated) if they are deemed to be supporting declared terrorist organizations, based on their actions.

The Boston Archdiocese has come up with a new plan: they’re claiming that the First Amendment means that civil laws don’t apply to churches.

Anyone still Catholic at this point? I ask merely out of curiosity.