Ratings and warnings of "sexually explicit material"

According to a C|Net article, the Senate Commerce Committee approved an amendment to a bill that would require web site operators to place a label on their home pages if the site contains "sexually explicit material" and to "rate 'each page or screen of the website that does contain sexually explicit material' with a system to be devised by the Federal Trade Commission'" ("Senators adopt Web labeling requirement").

There is no hope that a workable system could be based upon that rule. Set aside for the moment the probably-fatal First Amendment concern that "sexually explicit material" is unlikely ever to be defined clearly enough to survive judicial scrutiny and that we would need such a definition for multiple categories of sexually explicit material. The stated purpose of the bill presumes that children do not want to see sexually explicit material. According to the article:

"This will protect children from accidentally typing in the wrong address and immediately viewing indecent material," said Sen. Conrad Burns, a Montana Republican who is the co-founder of the Congressional Internet Caucus.

Have you ever known a child to walk away from something sexually explicit without looking at it? I doubt such a child exists.

First Amendment analysis of Berkeley evolution web site

A lawsuit filed by Jeanne and Larry Caldwell against the operators of an educational web site about evolution (called "Understanding Evolution"), hosted by the University of California at Berkeley, has received international attention. Apparently, they claim that the use of public funds (a National Science Foundation grant) to write and publish documents that promote belief in evolution (which the Caldwells appear to believe contradicts their religion) violates the establishment clause of the First Amendment.[FN1] This is my "quick and dirty" First Amendment analysis.[FN2]

In general, the Berkeley site seems, to me, to be on solid ground, although the First Amendment establishment caselaw sometimes requires a very narrow focus on the particular statements at issue, as opposed to on the web site in general. From what I gather from news reports, only one element (or a small number of elements) of the site appears to be under attack. I think that element will survive First Amendment scrutiny, although, personally, I think it was a bonehead thing to publish in the first place. The statements being attacked are pretty foolish.

Some news articles report that the suit seeks to force the site operators not to "mention" religion. I doubt those reports are accurate, since a prohibition on "mentioning" religion would clearly be too broad. The courts have upheld or favorably discussed many government mentionings of or references to (1) religion generally, (2) particular religions, and (3) religious doctrines. For example: "In God We Trust" printed on money, presidential proclamations declaring a national day of prayer and thanksgiving, public offices closing on "Christmas Day," prohibitions on selling alcohol on Sundays, and the recitation of a prayer at the beginning of each session of Congress and of the Supreme Court.

The First Amendment analysis most often used by federal courts is the "Lemon test," named for the Supreme Court decision in Lemon v. Kurtzman, 403 U.S. 602 (1971). The original Lemon test had three prongs: (1) whether the state action (or law) has a religious purpose, (2) whether the state action has the primary effect of advancing or inhibiting religion, and (3) whether the state action excessively entangles the government and religion. In more recent cases, the last two prongs have been merged (or at least brought close together), so today there are really two prongs: a "purpose" prong and an "effects" prong. The prongs were further muddied in the late 1990s when one of the Justices wrote in Agostini v. Felton that excessive entanglement is one factor to consider in determining whether a state action's primary effect is religious (the other two factors being government indoctrination and defining the recipients of government aid based on religious criteria).

Courts also sometimes use the so-called "endorsement test" when the government is engaged in expressive activities like publishing documents or sponsoring speakers (such as commencement speakers at public schools). The endorsement test asks whether the state action somehow endorses a particular religious viewpoint. The rationale, according to Justice O'Connor, is that such endorsement can make some people appear to be favored and others appear to be outsiders in the political community on the basis of whether they share the religious belief endorsed by the government. (Justice O'Connor urged adoption of this test in 1984, in a concurring opinion in Lynch v. Donelly, 465 U.S. 668 (1984). I am not sure if the Supreme Court has ever expressly adopted it, but the Court does now use it as part of the Lemon test, as a factor to consider in determining if the state action has the purpose or effect of advancing religion.)

Finally, where the use of public funds is concerned, the Supreme Court applies the "neutrality" test, which asks whether the state action treats religious groups in the same manner as other similarly-situated groups. Use of the neutrality test is a more recent trend, and it has been applied most often in cases involving government aid to schools that are affiliated with religious entities (e.g., vouchers, textbook handouts, and E-Rate).

That is a nutshell of the law. Now for some facts about the Understanding Evolution site.

The site's search engine returns three hits for "religion." One is the particular FAQ (frequently asked question) that is receiving all the attention. It is only one FAQ among many. That FAQ also provides a link to a web page of the National Center for Science Education (NCSE) which contains statements about evolution from religious organizations. The second hit contains the site credits, where a biographical blurb for Alan D. Gishlick states that Dr. Gishlick is interested in "the interface between science and religion, especially as it relates to biological evolution." The third hit is a list of FAQs on the controversies surrounding the teaching of evolution, which mentions the word religion solely in the context of a link to the same NCSE web page mentioned above. The rest of the FAQ answers on that page appear to be external links to other web sites with a terse description of what is on each external page.

Looking at the Understanding Evolution site as a whole, its mentionings of religion seem, to me, to be tangential and incidental to its main focus. The main focus appears, to me, to be just what is set forth in the site's "About" page: "Understanding Evolution is a non-commercial, education website, teaching the science and history of evolutionary biology. This site is here to help you understand what evolution is, how it works, how it factors into your life, how research in evolutionary biology is performed, and how ideas in this area have changed over time." That seems, to me, to be a good faith description of the contents of the site.

In the framework of existing caselaw, I doubt a court would rule any part of the site unconstitutional. It would be hard to construct a convincing argument that the site's primary purpose is other than scientific and educational. The site's primary effect is to disseminate facts about evolution and explanations of related concepts, with the intent of helping educators teach. I doubt anyone can plausibly argue that the site excessively entangles the government in any church or religious doctrine. The mere mention of a handful of religious entities and providing links to copies of their public statements hosted elsewhere does not seem, to me, to be particularly entangling or to endorse those particular religions over others.

Under the neutrality test, I think the proper question is whether the National Science Foundation (NSF) would, under the right circumstances, give a grant similar to the one it gave to Berkeley to a church if the church had submitted a proposal to create an educational web site about evolution that meets the same criteria as the Berkeley site — i.e., that it disseminates valid scientific information, that it is helpful to teachers, etc.

On the other hand, the particular FAQ that mentions religion does have some endorsement problems. It makes specific, declarative statements that evolution and "religion" are not incompatible and states that many religious groups accept evolution as fact. Those statements clearly have the effects of inhibiting (however slightly) religions which purport to be incompatible with evolution and of endorsing or advancing (however slightly) religions which purport to be compatible with evolution. They also have the effect (however slight) of making some people (e.g., fundamentalist protestants?) feel like outsiders.

Just how slight or not-slight those effects are is debatable — hence the endorsement problem and the need for good lawyers.

On the whole, I think the operators of the site have little to worry about. They might be ordered to revise or remove that particular FAQ. Rewording it in terms of particular religious groups rather than "religion" would make it more likely to survive First Amendment scrutiny. The site's controversy FAQs are instructive: they address much narrower concepts than "religion" (e.g., "What is Creationism?" and "What is intelligent Design?"), and they simply provide links to other web sites with terse introductions, without editorializing.

Believe it or not, that is the "quick" analysis.

---

Footnotes:

1. I have not read the Complaint; if anyone can provide a link to it, please email me.
   
   
   
2. I originally wrote this essay as an email to a friend who had asked me about the Caldwell suit over dinner. The result was a very long email, so I decided to post it here. Please note one caveat: I wrote the caselaw summary almost entirely from memory which is now 2+ years old, so a mistake or two is possible. I will correct any errors brought to my attention.
   Posted at 10:41:13 PM | Permalink
   | Comments (0)
   Trackback URL: http://www.danfingerman.com/cgi-bin/mt-tb.cgi/273
   Topics: Civil Liberties, Evolution, Science, Skeptical Inquiry

ChoicePoint & Privacy

I used to consider myself reasonably well informed about the issues surrounding privacy and information technology. I admit to feeling a little smug when I read Bob Sullivan's article on MSNBC yesterday, about breaches of consumer privacy admitted by ChoicePoint ("Database giant gives access to fake firms"). Mostly, I felt smug about one consumer whom Sullivan quoted as saying she had never heard of ChoicePoint — the data mining company that tries to collect and organize information about every consumer, business, and transaction that occurs in the United States.

However, my smugness vanished when I clicked through to a linked article, by Robert O'Harrow, Jr., of the Washington Post, that describes ChoicePoint in some detail ("ChoicePoint finds wealth in information"). I had no idea the company had reached such an enormous size and was still growing so fast. It was pretty humbling.

California voters, hoodwinked, expand DNA database

I generally respect reasonable disagreements on complex issues. Even when I think the majority gets it wrong, I rarely think voters were bamboozled. Unfortunately, that is what happened yesterday when California voters approved Proposition 69.

The proposition was popularly called a measure to expand the state's "Felon DNA Database" — see, for example, the San Francisco Chronicle's return page for this proposition. I have never seen a ballot initiative so deceptively described. Every supporting editorial, radio spot, and flier touted how it would help "catch criminals" — which it just might do. Unfortunately, they ignored its devestating effect on everyone else's privacy. Privacy was rarely, if ever, mentioned in the supporting arguments — not even to refute the compelling arguments against the measure.

Privacy was not even a blip on the radar screen: it was a speck of dust flicked off the screen by a bored radar operator. I cannot recall the last time my level of frustration with a public debate was this high.

Grand Canyon: A Questionless Inquiry

Last year, the National Park Service began distributing a book by Tom Vail, a veteran tour guide at Grand Canyon National Park and head of Canyon Ministries. The book, Grand Canyon: A Different View (available online at the Institute for Creation Research) argues that the eponymous gorge was formed quickly — Diluvially, in the Noachian flood — and not gradually, by millennia of erosion.

After a (relatively anemic) public outcry, President Bush promised that his administration would "review" the sale of the book at national park gift shops. According to Public Employees for Environmental Responsibility (PEER), the review was discarded the moment the public had turned its attention elsewhere. The book is still on sale at the park, where the administration has also reinstalled bronze plaques bearing bible verses at scenic overlooks (from which they had previously been removed, on the advice of Interior Department lawyers). PEER's press release has more details. PEER also claims to have compiled numerous other examples of what it has dubbed Bush's "faith-based parks" agenda.

Obituary: Richard M. Schmidt, Jr.

Sadly, yesterday I heard that Richard M. Schmidt, Jr. had passed away on the 17th. First Amendment buffs will remember Schmidt as a champion of the free press and counsel for the Miami Herald in Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S. Ct. 2831, 41 L. Ed. 2d 730 (1974). In that case, the Supreme Court struck down a Florida "right of reply" law that forced newspapers to publish responses to critical editorials. Chief Justice Burger wrote this memorable passage:

The Florida statute operates as a command in the same sense as a statute or regulation forbidding appellant to publish specified matter. Governmental restraint on publishing need not fall into familiar or traditional patterns to be subject to constitutional limitations on governmental powers. The Florida statute exacts a penalty on the basis of the content of a newspaper. The first phase of the penalty resulting from the compelled printing of a reply is exacted in terms of the cost in printing and composing time and materials and in taking up space that could be devoted to other material the newspaper may have preferred to print. It is correct, as [Tornillo] contends, that a newspaper is not subject to the finite technological limitations of time that confront a broadcaster but it is not correct to say that, as an economic reality, a newspaper can proceed to infinite expansion of its column space to accommodate the replies that a government agency determines or a statute commands the readers should have available. […]

Faced with the penalties that would accrue to any newspaper that published news or commentary arguably within the reach of the right-of-access statute, editors might well conclude that the safe course is to avoid controversy. Therefore, under the operation of the Florida statute, political and electoral coverage would be blunted or reduced. Government-enforced right of access inescapably dampens the vigor and limits the variety of public debate. […]

Even if a newspaper would face no additional costs to comply with a compulsory access law and would not be forced to forgo publication of news or opinion by the inclusion of a reply, the Florida statute fails to clear the barriers of the First Amendment because of its intrusion into the function of editors. A newspaper is more than a passive receptacle or conduit for news, comment, and advertising. The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials — whether fair or unfair — constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time.(Id. at 256–258 (citations omitted))

MGM v. Grokster affirmed

Right now I have nothing to add to what is being said on the 9th Circuit's affirmation [pdf] of MGM v. Grokster — except to recommend Ernest's comments, then Derek's Leftovers and Frank's link collection.

...And then let's raise our voices with a collective WOOHOO!!!

CBO releases report: "Copyright Issues in Digital Media"

The Congressional Budget Office (CBO) released a report today which analyzes digital copyright issues from an economic perspective: "Copyright Issues in Digital Media." (Via C|Net)

I have not had time to read the whole thing yet. Having only skimmed the summary and the first few sections, it seems that it could provide a good starting point for debates over new legislation. It is not as heavily laden with economic or legal terms as other analyses have been.

Oh, yeah...and I like the frame it created for the debate. From the summary:

• Property rights and other elements of a regulatory regime for creative works should be regarded as instruments for allocating creative resources. Hence, existing copyright law should not be viewed as an absolute, inviolable set of rights to which either creators or consumers are entitled.
  
• Revisions to copyright law should be made without regard to the vested interests of particular business and consumer groups. Instead, they should be assessed with regard to their consequences for efficiency in markets for creative works and other products.
  
• Property rights are not free. For a system of property rights to be accepted and upheld, the costs of establishing and enforcing that regime must not exceed the eventual benefits from it.

FCC subjects VoIP to CALEA

The FCC acted this week on Uncle Fed's request that it subject VoIP providers to CALEA, the Communications Assistance for Law Enforcement Act. Last month, the FBI asked the Commission to exercise its authority to extend the group of technologies to which the act applies to include VoIP — in other words, to expand the reach of cheap and easy "wiretapping" for Uncle Fed and other law enforcement agencies. (Well, not literally "wiretapping," as I explained in detail a few months ago: "Wiretapping & VoIP.")

Yesterday, the FCC adopted a Notice of Proposed Rulemaking and Declaratory Ruling [pdf] in which it concluded that broadband providers whose facilities can be used for VoIP should be subject to the surveillance rules that govern traditional phone service providers:

[T]he Commission tentatively concludes that CALEA applies to facilities-based providers of any type of broadband Internet access service — including wireline, cable modem, satellite, wireless, and powerline — and to managed or mediated Voice over Internet Protocol ("VoIP") services. These tentative conclusions are based on a Commission proposal that these services fall under CALEA as "a replacement for a substantial portion of the local telephone exchange service."

Now, it wants public comment on implementation:

The Commission seeks comment on telecommunications carriers' obligations under section 103 of CALEA and compliance solutions as they relate to broadband Internet access and VoIP. In particular, the Commission seeks comment on the feasibility of carriers relying on a trusted third party to manage their CALEA obligations and whether standards for packet-mode technologies are deficient and thus preclude carriers from relying on them as safe harbors for complying with CALEA.

The kicker? Broadband providers are expected to bear the full cost of this law government program:

With regard to costs, the Commission tentatively concludes that carriers are responsible for CALEA development and implementation costs for post-January 1, 1995 equipment and facilities; seeks comment on cost recovery issues for wireline, wireless and other carriers; and refers to the Federal-State Separations Joint Board cost recovery issues for carriers subject to Title II of the Communications Act.

The New York Times has coverage: "F.C.C. Supports Surveillance Rules on Internet Calls". See also Declan's column from last week, for background info: "FBI targets Net phoning."

Arlo uppercuts Jib Jab

The latest Flash cartoon floating around is a hilarious parody of the U.S. Presidential campaign. The animated creation of Jib Jab stars President Bush and John Kerry, dancing to the tune of Arlo Guthrie's classic "This Land Is Your Land" and calling each other names like "right-wing nutjob" and "liberal sissy."

Despite the dangers (see: Idiot's guide to combatting satire), the company that owns the rights to Arlo's song has sicced its lawyers on Jib Jab. (See this CNN report.) President Bush learned first-hand in the last election that nearly any attempt to suppress Internet-based satire will fail spectacularly. Even if you have forgotten the incident, you probably remember Bush's (in)famous quote: "There ought to be limits to freedom."

---

CORRECTION (28 Aug.): Two days after posting this, I realized that Woody Guthrie — not his son, Arlo — wrote "This Land Is Your Land." I meant to post a correction but, unfortunately, managed to leave it in "save as draft" limbo. Yesterday, a concerned neighbor of Arlo's emailed me to set me straight on the facts. She also said that Arlo was unhappy with the record company's actions and that he thought his father would be, too. Then she pointed me to this link. I appreciate it when people constructively (and politely!) point out my mistakes.

Supreme Court dismisses Newdow's action on standing grounds

Time for me to live up to a promise made last October: "If the Supreme Court decides [Newdow v. Elk Grove Unified School District] on Article III (standing) grounds, I will be the first person to leap to its defense." I now leap to its defense.

News coverage: Christian Science Monitor, First Amendment Center.

Hasta la vista, bobble

The governor's goon squad (his film company, actually) filed suit today against Ohio Discount Merchandise, the company that created the collectible Arnold Schwarzenegger bobbing head doll. I have little time to write about this tonight, but I will predict right now that this will be this decade's landmark publicity/free speech case. I just hope Judge Kozinski has a chance to stretch before he goes to the mat.

As a bodybuilder and movie star (i.e., a member of the private sector), Arnold had a strong claim that his persona and likeness were worth millions and protectible. As a governor, however, the First Amendment demands that he relinquish most of the control he used to enjoy. The doll at issue is obviously a parody, and it is part of a series that depicts public figures — from Tom Daschle to Abraham Lincoln to Al Capone to Jesus. This lies somewhere between a Three Stooges T-shirt and Vanna White, circa 2012.

For ongoing news coverage, Google is your best bet. For the earliest round of stories, see the Business Wire, New York Times, and LA Times (editorial).

FBI proposes expansive broadband "wiretap" rules

Declan McCullaugh and Ben Charny report on C|Net that Uncle Fed issued a proposal for expedited rulemaking [pdf] which would grant him new and expansive "wiretapping" powers for broadband Internet services. In this case, Uncle Fed is backed by the Federal Bureau of Investigations (FBI), Department of Justice (DOJ) and the Drug Enforcement Agency (DEA).

Two months ago, Uncle Fed asked the Federal Communications Commission (FCC) to do this dirty work for him. FCC Chairman Michael Powell paid some lip service to security concerns at the time, but he has apparently let the request languish. (At least, I have not seen the media report any subsequent FCC actions.) Around that time, I blogged on the word wiretap and complained that it makes a poor analogy to surveillance of digital communications ("Wiretapping & VoIP"). I would like to make the same comment again now and point out that Uncle Fed's newest proposal supports my point even more clearly.

I promise to write more on this in the near future. Unfortunately, I do not have time today to write a multi-volume treatise on the dangers these regulations would pose to civil liberties.

Blundering through security

It appears the U.S. Patent & Trademark Office (PTO) has removed the infamous ricin patent (No. 3,060,165) from its online database. The PTO boasts that it provides all patents since 1976 in searchable text and images of patent pages from 1790. Obviously, this is now false. (Via Ernest, via Dan Gillmor, via Bruce Schneier.)

Half the developed world's patent offices make this patent available over the Internet. Considering that the patent was granted in 1965, I think a few paper copies might also exist. Therefore, this is about as effective a security measure as requiring travelers to show a driver's license before they board an airplane — that is to say, wholly ineffective. All this does is inconvenience the law-abiding American public when it tries to do research.

Ernest makes the important point that the fundamental principal underlying our patent system is that inventors get exclusive rights to their inventions in exchange for full disclosure of the invention to the public. This is hardly the first case where the public has been shortchanged in the name of security. Ernest also has the best summary comment thus far (hyperlink original):

Rest assured Senator, the lack of the patent in the US database means that terrorists will never be able to figure out how to make ricin because even web-savvy bloggers can't get the information very easily .... ooops. Never mind.

FTC "primary purpose" spam rule is a chance to revisit Central Hudson

Yesterday the Federal Trade Commission (FTC) announced that it would begin hearing public comments today on a rule that the CAN-SPAM Act requires it to propound — a definition that permits a determination whether an email's "primary purpose" is commercial. (Click here to read the proposed rule and here to submit a comment.)

The statute applies to commercial messages, so someone has to define precisely what commercial means. Naturally, Congress passed that buck to the FTC. The U.S. Supreme Court has grappled with the definition of "commercial speech" since it first recognized the concept in 1976, in Virginia Pharmacy (abstract). I rarely agree with Clarence Thomas, but I find his logic on commercial speech unassailable. There is simply no articulable definition that captures all commerciality without also capturing noncommercial elements. Likewise, there is no articulable definition that avoids capturing noncommercial speech without missing large swaths of the commercial sector. To borrow two terms from another line of constitutional jurisprudence, all definitions of "commercial speech" that have ever been suggested have been overinclusive or underinclusive. How can we justify regulating a class of speech that we cannot even define?

Since 1995, Justice Thomas has consistently railed against the commercial-speech doctrine of Central Hudson. In the last few years, the Court seems to have been moving slowly, reluctantly towards his position in 44 Liquormart, Ruben, and Glickman. Although he lost the Glickman fight, it was a 5-4 decision, and the commercial speech issue was not squarely implicated. With a challenge to the FTC's "primary purpose" rule propounded under CAN-SPAM — no matter what the final rule actually says — there will be no room for the Court to dodge the underlying First Amendment question. One can only hope the case rises that far.

IP practitioners and the public interest

This past month — my first as an IP attorney — has uncovered many wonderful things for me. The most wonderful has been the attitude of several attorneys that it has been my pleasure to work with. Although none of them have ever (to my knowledge) been an activist or "copyfighter," they seem genuinely concerned for the public interest in the area of IP law.

Like all good patent litigators, they avidly watch the Federal Circuit for interesting decisions. However, these folks occassionally cheer when the court limits the scope of patent law in ways that limit the rights of patent holders and expand the public domain. They cheer notwithstanding that such decisions may ultimately mean less money in their own pockets. When I described the size of statutory damges authorized by the Copyright Act, one partner refused to believe me until I showed him a copy of § 504. Even then, his reaction was, "Hmmm...what did Disney pay to get that?"

There are many good reasons why I chose to join this firm.

Patriot Act provision struck down

It was bound to happen sooner or later. A federal District Judge in Los Angeles has struck down a provision of the USA PATRIOT Act as unconstitutional. The New York Times highlights the First Amendment argument advanced by the Humanitarian Law Project: "[S]everal humanitarian groups that work with Kurdish refugees in Turkey and Tamil residents of Sri Lanka had sued the government, arguing in a lawsuit that the antiterrorism act was so ill defined that they had stopped writing political material and helping organize peace conferences for fear that they would be prosecuted."

The provision at issue forbids U.S. citizens from giving "expert advice or assistance" to known terrorist groups. As written, this language would prevent a dentist from cleaning a terrorist's teeth — there is nothing to limit the prohibition to advice or assistance that could be used to further terrorism. The court summarized this shortcoming: "The USA Patriot Act places no limitation on the type of expert advice and assistance which is prohibited, and instead bans the provision of all expert advice and assistance regardless of its nature." Naturally, this vague rule would encompass "unequivocally pure speech and advocacy protected by the First Amendment." Therefore, the First Amendment demanded that it be struck down.

Wiretapping & VoIP

Last week, Uncle Fed (specifically, the Department of Justice, the FBI, and the Drug Enforcement Administration (DEA)) asked the FCC to force providers of voice-over-Internet protocol (VoIP) services to provide easy "wiretapping" capability to federal and local authorities. See Declan's report on C|Net: "Feds seek wiretap access via VoIP." A few comments are in order before the press mangles this situation and manages to obscure the facts. (Not to impugn Declan; I thought his article was good.)

Lawyers are in the language business, so we should examine the word wiretap to shed some light on exactly what Uncle Fed is asking for. Webster's Dictionary defines wiretap as an intransitive verb meaning "to tap a telephone or telegraph wire in order to get information." This definition is too circular to be useful at first, but this circularity becomes important later. Dictionary.com's nominal definition is a better starting point: "A concealed listening or recording device connected to a communications circuit." This was an accurate physical description when the term arose, during electric telegraphy's youth.

In those days, telegraphic circuits were hard-wired — that is, each pair of telegraph stations was connected by a single wire with one operator at each end. (Busy pairs of stations were connected by multiple wires, each one having operators at both ends.) Each transmission wire was plugged into a magnet-driven apparatus at each end that translated incoming electric signals into audible sounds and generated outgoing electric signals when the operator pressed a button. For an excellent beginner's text on early telegraphic technology and the economic and cultural developments it spawned, see Tom Standage, The Victorian Internet (1998).

In this environment, police had two options for surreptitious surveillance: (1) force the operator to disclose a message's contents after he received it, or (2) intercept the signal between the stations. Option 1 was inefficient because it was slow (the police had to wait for someone else to translate the message from Morse code and deliver it to them), and operators could not always be trusted to keep surveillance secret. Therefore, laws were passed that made option two mandatory. Telegraph companies were required to cooperate with the installation of a device (the "tap") onto their transmission wires that allowed the police to siphon off a tiny amount of the electric signal between two stations and send that signal to a police-operated station.

Later, switching technology made telegraphy more flexible. A switching device made temporary connections between transmission wires coming into the telegraph station. This allowed one operator (or more, at busy stations) connected to the switch to monitor several incoming wires simultaneously. Wiretap devices evolved in lock-step with switches and were quickly moved inside the switches so that fewer taps could monitor more transmissions without being physically reinstalled over and over. Whether this new configuration continued to qualify as "tapping" a "wire" is debatable. Early switching devices made temporary physical connections between telegraph wires by means of a third wire. Early switch tapping devices siphoned the electric signal off this switching wire, so there is a plausible argument that the term was still an accurate physical descriptor. Today we would understand the tapping devices as monitoring the operation of the switch device, not an individual wire within the switch. While wiretapping remained a reasonably good logical description of the tapping device's function, its accuracy as a physical descriptor was highly questionable.

The point to take from this is that wiretap first became an ambiguous term more than a century ago. Now reconsider Webster's circular definition, "to tap a telephone or telegraph wire in order to get information." Webster probably intended to denote the tapping of a circuit, not a wire, but we can forgive lexicographers for not being electrical engineers. However, Webster's definition unambiguously means eavesdropping on a single transmission or group of transmissions between two specified end points. In my experience, this is how law enforcers, laymen, and journalists all use the term. To convey the idea of collecting more than this information, they use such words as surveillance, eavesdropping, or data sniffing.

If the introduction of circuit switching made wiretap an ambiguous term, then the introduction of packet switching renders it positively useless. Packet switching is the transmission technology underlying the Internet Protocol, which is used for all Internet (and most local area network (LAN)) transmissions. Packet switching involves breaking data down into tiny pieces ("packets") and sending each packet across the network individually. This system eliminates the need for circuit switching, which dedicates a circuit to each transmission for the duration of that transmission. Few transmissions use the circuit continuously, so circuit switching inevitably involves inefficient "down time" for active circuits. Consider, for example, how frequently people pause while talking on the telephone. No information is transmitted during these pauses, but their circuit is monopolized nonetheless. Other callers cannot use this circuit until the first call ends — which forces the phone company to install a sufficient number of circuits to carry the maximum foreseeable number of transmissions simultaneously. This extra infrastructure is expensive to install and maintain.

Packet switching allows a small number of circuits to accommodate many transmissions because each one uses the circuit only while information is being actively sent. During each pause, the circuit is used for other transmissions. Additionally, different packets from the same transmission often take different routes across the network. Intermediate nodes will send packets along different routes to bypass busy sections of the network to avoid delays, among other reasons. Since packets must reach the destination individually, it must contain complete addressing information so that intermediate nodes can route it appropriately.

The same features that make packet switching more efficient than circuit switching also make it cheaper. (Sarcastic aside: This is as close to a "law" as the "science" of economics can offer us.) They also make it much more difficult to monitor communications. By definition, packets of information do not all travel through a packet-switched network by the same route. Therefore, there is no central box inside which to install a tapping device, as there is in circuit-switched networks.

The good news for law enforcers is that there does exist a place where all packets of a transmission must pass through before they are dispersed. That place is wherever the sender connects to the Internet backbone. "Backbone" is the name for high-speed networks that carry most Internet data until that data gets very close to its destination, at which time it is moved to a smaller (and usually private) network. All packets must travel from the sender's computer to the backbone through some identifiable means of transmission, be it in a cable or via wireless transmission in a form such as Wi-Fi.

The bad news for law enforcers is that each computer (or network) that connects to the Internet is connected via its own "pipe." They must install "tapping" devices on the connection used by each individual computer whose users' communications they intend to monitor. This requires that they get much closer to the target of the surveillance than they did with circuit-switched networks. In the old days, they could install tapping devices inside the switch at the telephone company's office. Conceivably they might do something similar at the target's Internet service provider (ISP). The FBI's (since-renamed) Carnivore project was an example of this. Unfortunately, this arrangement monitored traffic from all the ISP's customers, not just the intended surveillance target. In order to separate the target's transmissions from everyone else's, Carnivore has to read all packets that pass through. The only real solution to this problem is to install a device very close to the target — for example, in the cable that physically connects him to his ISP or at the antenna via which he transmits information to his ISP. This poses two main problems. First, the target may notice an unfamiliar device outside his house or office and become aware of the surveillance. Second, it is expensive because the police need to build many more devices and pay officers for the time it takes to install them at disparate locations.

By now, the linguistic difficulty of referring to any surveillance of data transmitted via the Internet as "wiretapping" should be obvious. At this point, I would like to shift direction slightly and briefly address a few related problems.

First, it is far from clear that the FCC has the authority to regulate VoIP as if it were a telecommunication service. It was widely reported last October that a federal judge in Minnesota ruled that VoIP companies provide "information" services, not "telecommunication" services, which means that states cannot regulate them under the Telecommunications Act of 1996. On the other hand, the 9th Circuit ruled earlier that month that the FCC erred in classifying cable broadband as an "information" service rather than a "telecommunication" service.

Second, according to Declan, Uncle Fed wants the FCC to require VoIP providers "to rewire their networks to guarantee police the ability to eavesdrop on subscribers' conversations." This is technically possible only for a few such services. In my understanding, Vonage sells black boxes that take input from a telephone and transmit data through the user's broadband ISP connection to Vonage's network, where Vonage routes it to another Vonage device or to a circuit-switched telephone network. Therefore, Vonage may be able to install devices that "tap" a specified user's conversations. Other services, however, operate in a fundamentally different way. Skype, for example, does not have any communications network at all. Its client software transmits voice data using the same decentralized P2P architecture found in Kazaa, the popular file-sharing client. (Skype was, after all, designed by the makers of Kazaa.) Therefore, Skype has no capability to install tapping devices, even if it wanted to cooperate with a hypothetical FCC order.

Third, as discussed above, to surveil transmissions on a packet-switched network, the police must read all data packets that pass through. If they ignore any individual packet, they may miss a piece of the message they intend to intercept. This makes it an unavoidable certainty that any "packet sniffer" will collect data that is not legally subject to surveillance — it would exceed the scope of all but the most expansive warrants. (Never mind that any warrant so expansive is probably unconstitutional because it would fail to state with particularity the information intended to be collected). Depending on the environment where the sniffer is installed, it may also collect data transmitted by third parties, who are not the intended targets of surveillance and who have a reasonable expectation of privacy in their communications. This is a Fourth Amendment problem of enormous magnitude — one that is well beyond the scope of this weblog.

Fourth, Uncle Fed's own statistics for 2002 show that about 80% of all wiretaps — both federal and state — were for criminal investigations in the course of enforcing drug laws. Only the remaining 20% were used for all other types of investigations. One is left to wonder whether the alarmist language in Uncle Fed's letter to the FCC was disingenuous: "criminals, terrorists, and spies (could) use VoIP services to avoid lawfully authorized surveillance." Uncle Fed tries to make it sound as if wiretaps are already an effective tool against such people when his own statistics show that wiretaps are rarely used against them. It would be another matter entirely if Uncle Fed intended to use VoIP monitoring technology to enforce drug laws. Even then, none of the dope dealers I knew of in college even knew what "broadband" meant — so it was unlikely that any of them had the equipment necessary to use VoIP. Even if drug importers are more sophisticated, the police can still monitor their communications through conventional warrants and responsible police work.

In conclusion, the only thing I can really say is that Uncle Fed's request is problematic, at best — and I am just a guy with an interest in Internet law, not an expert in history, technology, or constitutional law. If Uncle Fed was trying to start a national debate on the merits of Internet surveillance, it is about time we had one. If he thought he could slip this in under the radar, shame on him.

Grand Canyon: An Evidenceless View

Tom Vail, a veteran tour guide at Grand Canyon National Park has written a new book called Grand Canyon: A Different View (on sale at the Institute for Creation Research). This book encapsulates everything that is wrong with the creation "science" movement, and Vail's own words in the introduction summarize the main problem nicely, despite his obvious contrary intention:

For years, as a Colorado River guide I told people how the Grand Canyon was formed over the evolutionary time scale of millions of years. Then I met the Lord. Now, I have a different view of the Canyon, which according to a biblical time scale, can't possibly be more than a few thousand years old.

In other words, Vail once held a scientifically-justifiable opinion as to the Grand Canyon's origin. Then he underwent a religious conversion and decided that his prior conclusion was inaccurate — without having seen any evidence contradicting it. Finally, he set out to collect evidence supporting his new conclusion. This last step would be a good thing (having more evidence to evaluate is almost always a good thing), except that Vail has decided to cherry-pick the evidence he wants to believe. The geological evidence surrounding the Grand Canyon's formation points overwhelmingly to a slow formation over millions of years, but Vail refuses to give the evidence a fair shake.

The book is currently on sale at the Grand Canyon National Park gift shop, among many other places. It is a small consolation that "the book was moved from the natural sciences section to the inspirational reading section of park bookstores" after the park's irate staff complained, according to the Julie Cart of the Los Angeles Times (via Arizona Republic). At the same time, President Bush's faith-based National Park Service has blocked the distribution of informational pamphlets to park rangers and guides that would allow them to answer visitors' questions on the subject. (Source)

FBI uses web bug to track extortionist?

Abandoning the incentives not to report cybercrime (see my last blog entry), Best Buy called in the FBI when it received emails threatening to expose security weaknesses in its e-commerce site unless the retail giant forked over $2.5 million. The Bureau worked with Best Buy to snare Thomas E. Ray III, of Mississippi, the would-be scammer. The most interesting feature of this case is in the tools used by the FBI to catch the alleged blackmailer. The Bureau responded to Ray's messages with its own emails laced with something that allowed it to trace the IP address from which he read them.

Unfortunately, the early press reports are unclear as to exactly what that something was. The St. Paul Pioneer Press reports that the investigation "was aided by a computer-tracing technique." The FBI got "permission from the courts to use a specialized e-mail device — called the Internet Protocol Address Verifier — to track down the author." I have no idea what an "Internet Protocol Address Verifier" is, but it sounds an awful lot like a web bug.

Web bugs are tiny pictures embedded in email messages using HTML. When an HTML-enabled mail client opens the message, it renders the HTML — including any image tags. The sender can embed an image tag that will query his own web server for an image file, then examine his server logs to determine from what IP address the query came. For example, I could send an email with HTML tags pointing to images stored on www.danfingerman.com, then record the IP addresses of all requests for that image. After I collect the IP addresses and dates & times the image was accessed, I could take a page from RIAA's playbook and find a way to intimidate ISPs into telling me which individuals were using each IP address at the relevant date and time. Then I would know who read my email, the exact date and time, and I could get more information with some extra effort — like the reader's home address and phone number or the geographic location where he read the message.

Web bugs got the name bug after spammers started using them to verify email addresses. Recording calls to an image stored in a static location on a web server is not very helpful when you send email to millions of addresses and have no good way to link each IP address & time/date combination to a particular email address. (Believe it or not, the DMCA does have limits.) Spammers began to design web server software with dynamic links to a single image measuring 1x1 pixel. The images are tiny so that most people will not notice them (how often do you really view the source code of your email?) and to make them load quickly — before most people could hit the delete key. The relevant HTML tag written into each individual email would include a directory path that included the address to which that message was sent. Then, the web server's log would record the image request with the email address (as a simple text string) as part of the directory path to the image. This made it obvious which email addresses the queries were coming from. "Verified" email addresses are like gold for spammers, and they would use this information to charge higher prices for their services — because they could now guarantee that a higher percentage of their emails were being delivered to addresses where an actual person would see them.

The Pioneer Press article makes the FBI's Internet Protocol Address Verifier sound a bit like a web bug, but it is ambiguous. For example, it calls the verifier "a specialized e-mail device." Furthermore, the St. Paul Star Tribune had this to say ("Feds thwart extortion plot against Best Buy"):

The federal search warrant was obtained the morning of Oct. 24 [2003] and allowed the FBI, with Best Buy's cooperation, to use an Internet device known as an Internet Protocol Address Verifier. It contained a program that automatically sent back a response to Best Buy after the company sent a message to the e-mail address. The response allowed investigators to identify Ray as the sender of the e-mail threats, according to the government.

Assistant U.S. Attorney Paul Luehr said the address verifier was one of several investigative tools the government used to track Ray down.

"It was a tool that helped us confirm that other leads were moving in the same direction," said Luehr, who declined to discuss details of the investigation.

Did you see that? The Star Tribune called the verifier "a program." A web bug could never be confused with a "program." The source of my confusion should now be obvious.

If anyone knows what the heck an Internet Protocol Address Verifier really is, please let me know.

Diebold/DMCA summary & analysis

Mary Bridges of the Berkman Center has published "Diebold v. the Bloggers." The essay is a nice summary and analysis of the DMCA's darkest days to date. (Via A Copyfighter's Musings)

EFF calling for Pioneer nominations

It is a new year, so it must be time for the Electronic Frontier Foundation (EFF) to seek nominations for its 2004 Pioneer Awards. Nominations are due by 1 February.

Mattel v. Walking Mountain Productions as a teaching case

This morning I finally got a chance to read the 9th Circuit's decision in Mattel v. Walking Mountain Productions [pdf], handed down last week. The decision affirms a District Court's grant of summary judgment to Tom Forsythe, the man selling photos of nude Barbie dolls being attacked by kitchen appliances. I think the 9th Circuit's opinion will make an excellent teaching tool in law school courses.

When I took courses on Copyright and Trademarks & Unfair Competition, my casebooks included a few cases that discussed the First Amendment, but I never felt like any case tied up all the loose ends for me. I think Mattel does this. The court did a nice job explaining the intersections between copyright, trademark, trade dress, the First Amendment, and fair use. However, it does not seem to have assumed that many laymen would read its opinion, so it did not spend an excessive amount of ink reasoning from first principles.

Despite its sympathy for free expression interests (which ultimately won the day), the court was not unmindful of the business realities in this case. It began its analysis where Mattel's real interest lay — the market value of its Barbie brand and the potential future value of Barbie dolls and authorized derivative works. However, after detailing the small income that Forsythe realized from his parodic photographs, the court gave us this gem: "Purchases by Mattel investigators comprised at least half of Forsythe's total sales." (page 5, note 3)

The court sprinkled its opinion with language that strongly reinforced the freedom of expression concerns at stake in a case like this. For example, on Mattel's copyright claim:

However one may feel about [Forsythe's] message — whether he is wrong or right, whether his methods are powerful or banal — his photographs parody Barbie and everything Mattel's doll has come to signify. Undoubtedly, one could make similar statements through other means about society, gender roles, sexuality, and perhaps even social class. But Barbie, and all the associations she has acquired through Mattel's impressive marketing success, conveys these messages in a particular way that is ripe for social comment. (page 15)

This was immediately followed by footnote 7:

Mattel strongly argues that Forsythe's work is not parody because he could have made his statements about consumerism, gender roles, and sexuality without using Barbie. Acceptance of this argument would severely and unacceptably limit the definition of parody. We do not make judgments about what objects an artist should choose for their art. For example, in [Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)], the Supreme Court found that hip-hop band 2-Live Crew's rendition of "Pretty Woman" was a parody because it targeted the original song and commented "on the naivete of the original of an earlier day, as a rejection of its sentiment that ignores the ugliness of street life and the debasement that it signifies." [Campbell,] 510 U.S. at 583. No doubt, 2-Live Crew could have chosen another song to make such a statement. Parody only requires that "the plaintiff's copyrighted work is at least in part the target of the defendant's satire," not that the plaintiff's work be the irreplaceable object for its form of social commentary. [Dr. Suess Enters., L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1400 (9th Cir. 1997).]

On the trademark infringement claim:

As we recently recognized in [Mattel, Inc. v. MCA Records, Inc. [pdf], 296 F.3d 894 (9th Cir. 2002), cert. denied, 123 S. Ct. 993 (2003)], however, when marks transcend their identifying purpose and enter public discourse and become an integral part of our vocabulary, they assume a role outside the bounds of trademark law. Where a mark assumes such cultural significance, First Amendment protections come into play. In these situations, the trademark owner does not have the right to control public discourse whenever the public imbues his mark with a meaning beyond its source-identifying function. [Internal quotation marks and citations ommitted.]

The court spent nearly a page distinguishing fair use from its First Amendment analysis on the trade dress claim (following the 2d Circuit's precedent in Rogers v. Grimaldi [pdf], 875 F.2d 994 (2d Cir. 1989)), in a long footnote (#14) on pages 20-21. I have never seen a court spend that much time on the fair use/First Amendment distinction. It was especially helpful in this case, after the court had analyzed the issues in light of Rogers:

The Rogers balancing test requires courts to construe the Lanham Act "to apply to artistic works only where the public interest in avoiding consumer confusion outweighs the public interest in free expression." Rogers, 875 F.2d at 999 (emphasis added [by the Mattel court]). Accordingly, the Rogers test prohibits application of the Lanham Act to titles of artistic works unless the title "has no artistic relevance to the underlying work whatsoever or, if it has some artistic relevance, unless the title explicitly misleads as to the source or the content of the work." [Some internal citations omitted]

The court did a simiarly good job explaining the trademark dilution and trade dress infringement issues. I will not belabor my point here; the examples above show how good a teaching case this would be. The only issues that the court treated summarily were Mattel's state law claims, dismissing them on First Amendment grounds for the reasons it stated in other sections.

The major downside to using this case as a teaching tool is its length — forty pages. Fortunately, the last seven pages deal with procedural issues and attorney fees under the copyright and Lanham acts. These sections could easily be separated from the rest when discussing free expression issues.

Norweigan authorities drop DeCSS case

Mary of bIPlog reports that the Norweigan prosecutors on the DVD Jon case have decided not to appeal his second acquittal. This is wonderful news.

Cyberbullying and school (in)action

The Christian Science Monitor has a feature article by Amanda Paulson on "cyberbullying." The article outlines the problem, analyzes it as merely a new platform for old-fashioned bullying, and discusses the perils of censoring speach for short-term disciplinary goals. I think that analysis is on the right track, but I would like to add a few points.

The article ignores the grandaddy of all cyberbullying cases and the publicity that surrounded it — the case of Jake Baker and the University of Michigan. Mr. Baker's First Amendment defense ultimately led to his exoneration of charges of making threats. (See the EFF case archive for comprehensive information.) The CS Monitor article does, however, discuss the more recent case of "Ghyslain, the Canadian teenager who gained notoriety this year as 'the Star Wars kid.'" This young man videotaped himself goofing around with a broomstick, as if it were a fighting staff.

Some peers got hold of the video, uploaded it to the Internet, and started passing it around. Doctored videos, splicing him into "The Matrix," "The Terminator," or the musical "Chicago," with added special effects and sounds, soon followed. He's now the most downloaded male of the year. According to news reports, he was forced to drop out of school and seek psychiatric help.

"It's one of the saddest examples," says [Glenn Stutzky, an instructor at the Michigan State University School of Social Work]. "He did one goofy little thing, and now it will always be a part of that young man's life."

The article also mentions that (public) schools may lack the authority to shut down off-campus channels of speech used for bullying. The author seems to divide this into two distinct points, one practical and one legal, but it could stand some clarification. First, schools lack the practical ability to censor such centralized speech channels as web-based bulletin boards and instant messaging networks — because the school is not the central entity. These are generally physically controlled by private companies. When it comes to open and decentralized channels (like email, IRC, or usenet), the school has no chance. Second, the legal barriers. Any action that schools take or fail to take can open them up to the modern American passtime, lawsuits. Any course of action necessarily requires the school to make judgments that pit one student's civil rights against another's — specifically, the right of the bully to speak vs. the right of the victim to have a public education free from harassment. Schools are understandably reluctant to break any new ground in this context. If I were a school board lawyer, I might recommend the most conservative course of action I could think of.

However, schools are not always so loathe to target Internet speech that is generated off-campus. Some get trigger happy when a student's web site criticizes teachers or administrators. Just the other day, I blogged on a recent case involving the Oceanport School District in New Jersey. I could probably turn up ten more examples in as many minutes on Google.

Finally, I want to highlight a case described in the article that displays the best the First Amendment has to offer. "J. Guidetti, principal of Calabasas High School, did get involved, after comments on schoolscandals.com caused many of his students to be depressed, angry, or simply unable to focus on school." All of Guidetti's initial efforts failed — as long as he used a law-enforcement approach. Then, he decided to counter speech with speech:

Eventually, a local radio station got involved and put enough pressure on the people running the site — a father-son duo — that they took it down in the spring. Already, there's a schoolscandals2 — relatively harmless, so far. Guidetti checks it regularly for offensive content, one of the ever-growing tasks of a 21st-century principal.

To be clear, I do not advocate publicly shaming people for their speech. However, opinions that wilt in sunlight are exactly the sort that the Framers of the constitution believed could be controlled by encouraging counter-speech. Guidetti engaged in honest public debate, convinced more people than his opponents, and won the day. By taking his case to the airwaves, Guidetti created speech where he had previously tried to destroy it, and liberty had a rare chance to serve a utilitarian purpose.

Congressional spam

The New York Times points out, rather amusingly, that most members of Congress were engaged in sending a massive wave of unsolicited email to their constituents this weekend — barely ten days after unanimously approving the CAN-SPAM Act. Article: "We Hate Spam, Congress Says (Except Ours)."

"They are regulating commercial spam, and at the same time they are using the franking privilege to send unsolicited bulk communications which aren't commercial," David Sorkin, a professor at the John Marshall Law School in Chicago, said. "When we are talking about constituents who haven't opted in, it's spam."

Florida launches faith-based prison

The Associated Press reports that Jeb Bush, the Governor of Florida and brother of the President, quarterbacked the opening ceremony of a new social experiment: a faith-based prison. (Via Washington Post) The experiment is being hailed as the first such prison in the United States.

The "new" prison is really a rededicated old prison that has been in operation for some time. Now, however, it will cater to its prisoners' spiritual "needs" where the old system did not. The state claims that all 791 prisoners therein are living there voluntarily — either because they chose not to transfer out or because they applied to transfer in. AP reports a different story, however:

Many of the prisoners who did not transfer from Lawtey stayed simply because they did not want to move, and not because they wanted to become more involved in religion. But inmates who want to make use of the faith initiative say those who do not participate eventually will be released and replaced by others who will make the program stronger.

"They'll get weeded out," said Bryan Lemaster. "When that gets taken care of, I think it will be pretty good." Lemaster is a Catholic who is serving a three-year sentence on a gun violation. It is his second time in prison after serving time for burglary. He said he hopes to get closer to his religion.

The cynic in me wants to ask why this prison is the "first" of its kind in the country when the prison in Guantanamo Bay has been operating for two years. Oh yeah…the governor's brother declared that prison not to be on American soil and not subject to the jurisdiction of the U.S. judiciary. That prison is also mostly (entirely?) Muslim, and the President does not seem to consider it of the same stripe as a Christian prison.

Meanwhile, I will ask how long it will take for a court to declare the new experiment unconstitutional. Unless Florida plans to provide identical religious services to every person in every prison within the state, I do not see how it can escape the obvious problems under the establishment clause of the First Amendment and the equal protection clause of the 14th Amendment. Each prisoner quoted in the AP article practiced some flavor of Christianity. Does the State also provide spiritual counseling to Jews, Hindus, Buddhists, Wiccans, atheists, secular humanists, agnostics, and Jedis? Does such counseling receive equal per-prisoner funding? How do the minister-to-prisoner ratios compare? Are their faiths' holy scriptures available in the prison library, alongside the Christian bible? Are the Jews provided with a Torah scroll? Do the Jedis get light sabers?

All the published interviews I can find thus far — with prison officials, politicians, prisoners, volunteer ministers, and their families — have been with Christians. Each one makes a point of saying that prisoners will be free to practice whatever faith they choose and that no one will proselytize. Unfortunately, their actions and attitudes belie this as dishonest.

For example, Paul Smith, pastor of Miracle Baptist Church in Stuart, Florida, said in an interview with TCPalm.com: "An inmate can be selected [to live in Lawtey prison] whether he has faith, whether he doesn't have faith, or whether he wants to come to faith." In other words, this volunteer was told something different than what Governor Bush told the press at the opening ceremony — that some prisoners are not there because they chose to practice a particular faith. When asked whether the prison would cater to Christians, Pastor Smith said, "absolutely not. A faith-based prison is for all faiths and all denominations." When asked about those other faiths and denominations, however, he named only Catholics and Muslims. Later, he revealed the depth of his bias:

It does not violate separation of church and state, one, because all of the inmates have volunteered to be there. If they were being forced or if they were given some type of reduced sentence, or early release to participate in the program, then I think it's a violation. The only thing that this program is a violation to is the devil and the fact he wants to have more souls go to hell.

As established by AP, not all prisoners are there voluntarily, and the problems are compounded by the program's reliance on volunteer ministers. The motivation of all the volunteers appears to be wholly religious. The rationale behind the reliance on volunteers is to prevent the State from paying ministers' salaries — on the theory that not spending money in such a manner will solve the establishment-clause problem. The Christian Science Monitor reports:

In the program, volunteers will act as personal mentors, offering support to each inmate both during their incarceration and as they settle back into the community after serving their sentences. Inmates will participate in all the usual day-to-day prison activities, but during evenings and at weekends will undergo extra classes examining issues such as anger management, good parenting, and the effect of crime on victims, run by representatives from a variety of faiths including Islam, Judaism, and Christianity.

As of today, 26 religions will be represented among Lawtey's population. Belief in a god is not a requirement of the program. But a commitment to self-improvement is. Of the 819 prisoners housed at Lawtey when the scheme was announced in early December, less than 100 have indicated that they do not wish to take part; they have been moved to facilities elsewhere in the state.

Floridians have more than 26 religions, and I would bet that their prisoners do, too. Until they solve that problem — and the problem of the "many" current Lawtey prisoners who want no part of this religious program — this experiment will remain unconstitutional.

LPC gets nasty

The Liberal Party of Canada went off on a funny tirade against the proprietors of PaulMartinTime.ca — a spoof of the Canadian Prime Minister's official site, PaulMartinTimes.ca. This is, of course, the Canadian equivalent of G. W. Bush's famous campaign gaffe, "There ought to be limits on this kind of freedom." (Via BoingBoing)

Update: Slashdot has been discussing this issue here. (Link via TechLaw Advisor)

DC Circuit stumps RIAA

By now the world has heard of the D.C. Circuit decision in RIAA v. Verizon. Previously, the D.C. District Court ruled that Verizon must comply with RIAA's subpoenas, issued under § 512 of the Digital Millennium Copyright Act (DMCA). Those subpoenas are designed to force ISPs to disclose the identities of users whom RIAA suspects of illegally making copyrighted music available for others to download. RIAA can trace users by itself as far as their IP addresses (the sets of numbers that uniquely identifies every computer on the Internet), but it needs the cooperation of ISPs to connect an IP address with an individual's name and address. Once it has that information, it can send a cease & desist letter or file a lawsuit.

Yesterday's Circuit decision reverses the District Court's interpretation of the statute. The appeals court gave the statute an extremely close reading in rendering its decision. The relevant section has a complex sentence structure and many cross references, so it is no wonder that the parties (and two different courts) disagreed as to its meaning. Derek Slater makes a few interesting points, including: "I find it fascinating when opinions contrast in this way — when they see the same issue clearly, unambiguously, but oppositely. [District] Judge Bates, just like [Circuit Judge] Ginsburg, claims to stick to the statute's text and go no further, yet their opinions are night and day."

I think Donna's headline over at Copyfight goes too far: "Verizon Wins Victory for Privacy." I am in Ernest's camp on this one:

The decision is a victory for privacy, but not a victory for privacy as such. The result was reached on a technical reading of the statute, and turned on the fact that a subpoena can only be sent if a DMCA notice-and-takedown letter can also be sent. […] The constitutional issues that would have made this a victory for privacy as such, or for freedom of expression, were not addressed by the court.

The Circuit panel adopted most of Verizon's statutory argument — that § 512(h) authorizes subpoenas only in cases where the plaintiff alleges that the infringing material is stored on media controlled by the ISP. However, when the ISP is a mere conduit for data stored on media controlled by a third party (the ISP's subscriber, in this case), § 512(h) does not permit subpoenas outside of the context of a lawsuit.

This line of reasoning rests on the cross references between § 512(h) and § 512(c). Subsection (h) permits a copyright owner to apply to the Clerk of the court for a subpoena so long as the application contains "a copy of a notification [of claimed copyright infringement, as] described in [§ 512](c)(3)(A)." The relevant language in § 512(c)(3)(A) is: "To be effective under this subsection, a notification of claimed infringement must be a written communication … that includes substantially the following" six elements. The third enumerated element is "(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material." (Emphasis added)

The court agreed with Verizon that this language requires the subpoena application to assert that the ISP has the ability to remove or disable access to the allegedly infringing material. However, most current P2P applications use a decentralized architecture. This means that all shared data is stored on users' computers, not on any central server — except for temporary copies incidental to transmission, which the DMCA permits. Therefore, the ISP has no legal right to remove or disable access to the material shared on the P2P network:

No matter what information the copyright owner may provide [in its subpoena application], the ISP can neither "remove" nor "disable access to" the infringing material because that material is not stored on the ISP's servers. Verizon can not remove or disable one user's access to infringing material resident on another user's computer because Verizon does not control the content on its subscribers' computers.

This holding does have some privacy implications, but they are small compared to Verizon's alternative argument. Having decided this case on statutory grounds, the court ducked the larger First Amendment questions.

So what implications does it have? Dozens of people predict that RIAA will lobby Congress to close what it surely sees as a loophole in the DMCA. Ernest quipped, "[T]he RIAA has nearly hosed itself." The trade group has been trying to consolidate all its DMCA subpoena litigation in Washington, D.C. for administrative convenience. Now, however, it cannot be happy with its "success" in transferring the SBC case to the D.C. District from the Northern District of California in San Francisco — because the Verizon decision is now binding precedent in the nation's capital. This will not stop RIAA from getting users' information, however. It will only make the process slower and more expensive. Instead of paying its lawyers simply to draft subpoena applications, it now has to pay them to draft and file complaints and motions in