Liking the Constitution

When I “like” a page/person/business/group/event on Facebook, I am generally doing two things: I am choosing who I will speak to and hear from, and I am telling other people about it (thereby suggesting that they consider doing the same). I “like” my state representative on Facebook, for example, so that I can hear what issues are important to him, see what other local residents think about those issues, and participate in the conversation myself. I “like” an inn in Maine so that I can hear news from a vacation area I enjoy visiting. I “like” a local contractor so that I can discuss renovation mistakes they highlight along with a group of similarly minded homeowners. And I occasionally “like” a group or event simply as a public statement of support, and then promptly block their updates from my news feed.

This seems to be a perfect congruence of freedom of speech and freedom of association. And yet a federal judge named Raymond Jackson has ruled that Facebook likes are not protected by the First Amendment. Not as (written) speech, not as symbolic speech, not as a conduit to speech, not as freedom of association, not even as a method of petitioning the government for a redress of grievances. I must have missed the day in civil liberties class when the professor explained that the Constitution doesn’t apply to the Internet. It does leave me confused, though, about what happens if I call that federal judge a blithering idiot in this web-based forum. Would expressing such an opinion be protected speech? If expressing an opinion in an electronic way isn’t speech of any sort that the Constitution recognizes, can that opinion nonetheless rise to contempt of court? Because I’m searching Facebook for a group called “Judge Raymond Jackson is a moron,” and I’d like to know if I can safely click on the “Like” button when I find it.

Prop 8, diminished

The California Supreme Court has upheld Prop 8, but reduced it to as petty a measure as possible. Under yesterday’s ruling, gay couples still have the constitutional right in California to form a state-recognized family with all of the privileges and protections afforded to married couples. The government just can’t call it marriage unless the marriage took place before Prop 8 passed. The state will have to maintain full parity between domestic partnerships and marriages. Further,

any measure that treats individuals or couples differently on the basis of their sexual orientation continues to be constitutionally “suspect” under the state equal protection clause and may be upheld only if the measure satisfies the very stringent strict-scrutiny standard of review that also applies to measures that discriminate on the basis of race, gender, or religion.

This is far more protection than most states provide, and this almost entirely Republican court is now united in upholding those protections. The court goes to great lengths to make it clear that Prop 8 is just plain mean, and denies the Prop 8 proponents almost all of what they hoped to accomplish.

The court does leave the door wide open to embedding further rank discrimination into the state constitution, as long as the discrimination is done one small and hurtful ballot measure at a time. Hopefully the court will treat all future discriminatory constitutional amendments with at least as much hostility as they treated this one.

Unleaded

Time for my annual post about testing lead in toys. In two months, a new law takes effect in the US that requires manufacturers and importers to test toys (at significant expense) for lead and phthalates. As implemented by the CPSC, there are no exceptions for toys imported from European countries with much stricter safety laws than ours. There appear to be no exceptions for toys made entirely of safe materials such as cloth or wood, or using materials such as paints that are already tested by manufacturers. No exceptions for handmade toys sold at craft fairs. But we will still allow toys that are made, tested, and certified in China, which can’t be trusted to keep melamine out of our food chain.

There is an exception for toys that aren’t primarily for children, so the teaching aids I produce don’t have to be taken off the market. But I want to be able to buy the handmade wooden rattle, or the all-organic-fabrics stuffed animal, or the unpainted wooden train like the one I grew up with. I want to be able to buy German and English toys without traveling to Europe myself and sneaking them into the country as if they’re unpasteurized cheese. I want to be able to shop at the funky independent toy stores that sell American handmade and European toys. I’ll be glad if the CPSC can improve the safety of children’s products, but I’d like to see their focus start on where the problems have been: paints and plastics.

Remaining silent

I was raised to believe that the police were friendly, and I’ve known genuinely decent and friendly cops. I’ve chatted with plenty of cops on street corners, asked them for directions, reported crimes, and offered witness statements. I never used to worry about talking to the police, because I never had anything to hide.

I still have nothing to hide, but I’ve learned that it is perilous to talk to a law enforcement officer of any variety. That still distresses me, because our society is very poorly served by a system where honest and law-abiding citizens face serious risks from talking to the police. But there are in fact numerous reasons that every defense attorney will tell you to never talk to the police, even if you have done nothing wrong and even if you want to tell the police the truth, the whole truth, and nothing but the truth. Some of those reasons are laid out clearly, if quickly, by law professor James Duane in a 27-minute lecture. You may follow his reasoning and still disagree with his conclusions, as do many of the commenters on that page, simply because his conclusions are distressing. I’ll just point out that Duane goes out of his way to assume an ideal world in which the police officer you talk to is completely honest and well-intentioned, and his conclusions hold even in such a world.

Open wi-fi: comments

I was greatly cheered to see a signboard outside a rural Maine library last month declaring that the library is now a wi-fi hot spot at all times, not just when the library is open. Like post offices that provide access to P.O. boxes 24/7 simply by leaving the outer lobby unlocked, libraries can easily provide Internet access 24/7 (to anyone with a laptop) at no additional cost to themselves. Putting a sign up saying so helps out anyone driving by, and certainly clarifies whether it’s ok to use their wi-fi.


Photo by Michael

I used open wi-fi networks when I was traveling, back before anyone suggested that it would somehow be wrong to do so. I run an open wi-fi network at home because it makes it easier for myself and my friends to connect to it, but I certainly wouldn’t mind if someone driving by used it to check their e-mail. Since it’s a home network with limited capacity, I’d prefer that it not be used for steady high-bandwidth uploading and downloading by passing strangers—that should be common courtesy. If my router made it easy to do so, I’d probably enforce that by offering unlimited bandwidth to listed computers and limited bandwidth to unlisted computers.

Following the rules

People are very fond of rule systems, and with good reason. We live together in large groups by constructing rule systems that tell us what we should and should not do, which gives us guidance and makes other people’s behavior more predictable. Chaos is only fun in a sheltered environment. So we have layers of laws and regulations, social mores and religious practices, and our own senses of ethics and morality. These are all useful, and they can be viewed as a vast interlocking and overlapping set of rules.

Personally, I want rules to be clear and consistent, learnable, predictable, fair, and justified by reasonable principles. (Other people have other priorities, and friends say that’s what makes the world interesting and fun. Normally I agree, though sometimes it also makes the world frustrating and incomprehensible.) I enjoy learning rule systems, and the only common thread among the academic areas of study that I’ve most enjoyed was that they could all be described as formal systems: math, chemistry, theoretical linguistics, computer science, constitutional law, logic. Much of my work in publishing (though not all) is also related to formal systems, though most often in applied modes: contracts and intellectual property law, style sheets, proofreading, taxes, and navigating the postal service.

One of the hardest lessons I had to learn is that understanding the formal rule system is not enough, because there is frequently no way to force people or organizations to follow even their own rules. Formal rule systems, of course, do not always correspond to actual practice. In some cases, such as traffic rules, it’s obvious that the rules are frequently violated without consequence. But we’re also under the impression that there is a hierarchy of traffic cops and traffic courts that tries to correctly apply the traffic rule system when you are pulled over. In many arenas, that simply doesn’t happen. Intellectual property law is a fascinating rule system, but in practice most issues are either unresolved (as in the case of most copying regardless of whether it is fair use) or resolved in favor of the party with the deeper pockets regardless of merit (Disney/RIAA wins). Fair use is a nice idea, but you, as an individual, will never be able to enforce your fair use rights in any practical or reliable way. The postal service has remarkably clear mail manuals, but when a counter clerk or other postal employee wants to do something else, your mail is under their control. The DMM is only authoritative if the postal employee is willing to defer to it. The Constitution won’t save you from wrongful arrest or prosecution, and the niceties of due process are rarely observed because the court system is designed to intimidate well over 99% of defendants into taking a plea. In common consumer transactions, your only real recourse in the case of a problem is through a chargeback on your credit card, and that only works because the credit card industry values consumers more than businesses. It’s not about right and wrong (as defined by the rules). You may be interested in following the rules, but unless the other party in a dispute is also interested in following the rules, resolution of the dispute falls to the party with control. And many people and organizations aren’t interested in following the rules. This isn’t new, but it’s not something that I learned in school.

A group of people and organizations voluntarily following a shared set of rules seems like a good working definition of a community. A police state may make everyone follow a shared set of rules, but it’s not a community because it’s not voluntary. Our society is composed of many communities, and obviously needs some enforcement mechanisms if it is going to function smoothly. We also learn from interacting with people who have different sets of rules. But in my day-to-day life, I most value the time I spend within a community.

Leave nothing but footprints

If a painting is old enough, then copyright no longer applies to the painting. However, museums still want to control (meaning “profit from”) reproductions of their paintings, and in particular they want to sell copies of photographs of the paintings to schools and publishers and prevent other people from putting those photographs on umbrellas and coffee mugs. They used to rely on copyright law, but this little corner of copyright law changed in 1999 when a district court decision in Bridgeman v. Corel said that photographs of paintings don’t have enough originality to qualify for their own copyrights, at least when the photographs are specifically trying to be perfect reproductions of the original image. Uh oh, said the museums. Woot, said everyone else. I am in ur museum, slavishly repurrducing ur priceless artworks, said photography cat.

Rebecca Tushnet has posted a transcript of the fascinating “Who Owns This Image? Art, Access, and the Public Domain after Bridgeman v. Corel” panel in New York on Tuesday, as well as a link to a very relevant Mellon Foundation study: Reproduction charging models & rights policy for digital images in American art museums. If you’re a fan of copyright law, or you have experience with the museums and teaching art history side of things, this is fun reading.

I’ve been surprised to see museums becoming more amenable to consumer photography over the past 10 years, though some such as the DeCordova are still very opposed. Tripods are still banned from most museums, but image-stabilizing lenses and cameras aren’t. Perhaps the museums realize that this is not a battle they can win on the access front while still remaining open to the public. Unless they can convince people that photography inside a museum is as much a security threat as photography on a train.

Score digit for the bag team

While looking for a law review article about e-book licensing, I found an article on Gizmodo that had been lifted by techfeeds.info. The copying site used a primitive thesaurus algorithm to change many of the words, paying no attention to mere details like part-of-speech or context. An undergrad CS major could construct a better algorithm, but the results would not be anywhere near as funny.

My best guess is that techfeeds.info is a splog that’s trying a (new?) approach to avoid accusations of plagiarism or copyright infringement, like a deluded middle school student who thinks that research means copying an encyclopedia article sentence by sentence while changing a few words. Here’s the kicker: blog posts like this one from Gizmodo sometimes include attributed quotes. In fact, Gizmodo in this post quotes a multi-paragraph summary written by a group of named law students, and techfeeds.info mangles that entire quote as well. In doing so, techfeeds.info may give baffled readers the impression that these law students are incoherent writers, and the impression that Columbia Science and Technology Law Review publishes nonsense. (All while praising the “original, astonishingly readable jural summary.”) Law firms surely Google job applicants’ names, and this could create a rather bad impression. Is techfeeds.info engaged in defamation, slander, or both?

Orthodoxy

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.”

— Justice Robert Jackson, United States Supreme Court, 1943

This was written during World War II. I love the image of a constitutional constellation almost as much as the nostalgic image of a government interested in steering our ship of state by it.

Expectation of privacy

In the world of law enforcement, gathering evidence that can be used in court is all about people’s reasonable expectations of privacy. Which places and situations are public, and which are private? That’s largely determined by what we all agree on as the dividing line, rather than what an individual might prefer. I’d love to consider my living room to be private, but if my living room is visible from the street then it’s not. The prisoner who doesn’t realize that his phone call to his attorney is being monitored by the warden may believe his conversation is private and protected by attorney–client privilege, but that belief isn’t sufficient. Interesting questions arise then as new technology allows police to see through walls, to track heat signatures deep inside buildings, to listen to conversations happening 100 yards away, or to monitor phone calls between people talking in their homes. At what point can we no longer have any reasonable expectation of privacy?

The government would say that time is now. From an AP story on Veteran’s Day:

As Congress debates new rules for government eavesdropping, a top intelligence official says it is time that people in the United States changed their definition of privacy.

Privacy no longer can mean anonymity, says Donald Kerr, the principal deputy director of national intelligence. Instead, it should mean that government and businesses properly safeguard people’s private communications and financial information.

Privacy means something different for urban and rural areas. We may expect that nobody can hear or see us in our homes if our homes are surrounded by fields or woods, but privacy in a city means that people pretend they cannot see and hear their neighbors. Essentially, we rely on our neighbor’s discretion with our secrets. Donald Kerr wants us all to consider the government to be just another too-close neighbor and trust in the government’s discretion.

The question of how our notion of privacy should change is an important one, and one that citizens and organizations and the government should debate. But by leaking a constant stream of news over the past several years about how much information the government is already collecting, the government does not just prove itself unworthy of our trust in its discretion. The government preempts the debate, by making it manifestly unreasonable for us to expect privacy anywhere.

Restitution

Reuters reported today on a Senate bill that would let victims of ID theft “seek restitution for money and time they spent repairing their credit history.” The article omits some pertinent questions, such as how you document the time spent, how you put a value on that time, how ID theft is defined, and most importantly where the restitution would come from.

ID theft has come to encompass a range of crimes, including simply using a stolen credit card. Correcting wrong charges on your credit card statement is a breeze, however, compared to dealing with new credit accounts opened in your name with thousands of dollars in charges. To restore your credit rating, each of those new accounts has to be cleared and closed properly. You have to get a police report, fill out piles of paperwork, get forms notarized, and follow up for months with letters and phone calls. In the meantime, your newly lowered credit rating can raise your interest rate for buying a car, buying or refinancing a home, or obtaining a business loan. Your credit rating affects how you’re viewed by many potential landlords and employers, determines your car insurance premiums in many states, and really has an amazing number of ways it can screw up your life. If the ID theft extends to someone else’s health care, insurance claims, or even criminal charges being attributed to you, good luck ever getting it all fully straightened out. Restitution would be nice for some of that, too.

The Senate bill probably suggests that the restitution come from either some sort of public fund or from the criminal in the rare case that someone is actually caught. It would be easy to suggest that the restitution come from the companies and government agencies who are cavalierly collecting and then accidentally revealing our Social Security numbers and other personal information. I’d prefer that the restitution come from the banks and stores that open new credit lines despite fraud alerts on the credit bureau accounts, or from the insurance companies who use credit ratings as a proxy for racial discrimination, or from the police departments who write off thefts of thousands of dollars as a victimless crime, or from the credit bureaus themselves who trade so irresponsibly in error-ridden personal information. But the ultimate solution cannot be restitution. When 8.4 million people have their identities stolen in a year, the solution has to be to stop pretending that Social Security numbers are secret. We need better data protection policies and practices, but we also need to stop treating a Social Security number as a magic password that unlocks vast riches and creates vast headaches.

The vast whirling ballet of credit card shopping that comes crashing to a halt in the television commercial when someone tries to write a check isn’t portraying individual purchases. It’s portraying the vast whirling ballet of opening credit accounts that lenders and retailers are afraid will come crashing to a halt if we implement any sort of rational security policies. From the vantage point of the corporate box in the balcony, that ballet is beautiful. It’s not so beautiful for the 8.4 million people who got trampled last year.

Forming a more perfect union

Larry Sabato calls for a new Constitutional Convention in a recent column in the Los Angeles Times. The column is a confusing litany of falsehoods, misrepresentations, and nonsensical arguments. He starts out his column complaining that current proposals for tackling health care or Iraq are merely incremental fixes, and goes on to propose “radical changes” such as slightly increasing the number of electors in the Electoral College. Personally, I think that an incremental fix to health care might just benefit more people.

Unlike Sabato’s suggestions, there are useful changes we could make to the Constitution. We could revoke the legal status of corporations as persons. We could add an explicit right to privacy. We could protect habeas corpus even in times of war or insurrection, make all elections direct and protect the right to vote, create a right to basic health care or education, eliminate asset forfeiture laws, and much more. The framework by which we structure our society is worth careful consideration by an informed body politic. But before we consider either incremental or radical changes, it might be prudent to try enforcing the Constitution and laws we already have.

IP theater

According to the Harvard Coop (a Barnes & Noble college bookstore), the ISBN numbers of books required for courses are their "intellectual property." Or perhaps it's a combination of the ISBN and the price. Or some other basic book information. It's hard to tell exactly what their theory is, because the article in The Harvard Crimson is insufficiently specific about the intellectual property that the Coop is trying to protect, nor whether the Coop is claiming legal protection under copyright, trademark, patent, or trade secrets law. Normally it's important to determine the specifics of a legal claim before ridiculing it, because intellectual property law is a complex and mysterious ruminant prone to devouring both reason and common sense and spitting them back out as an unrecognizable pile of rules and regulations. The Coop is just making this up, however, using "intellectual property" as a magical incantation that supposedly justifies whatever they want to do. It's IP theater, just as confiscating water in airports is security theater.

Vardibidian posted about IP theater last month, when a civil service exam warned test-takers against writing down any of the questions, claiming that would be just as much copyright infringement as listening to a song on the radio and writing it down. (Gosh, those darn kids are writing down songs again. I knew they were up to no good.)

Last week I posted about trying to create a clear and sensible software license. I'd like my users to understand that copyright law does actually say they aren't allowed to distribute copies of the software to all of their friends. That gets harder when there are idiots in positions of apparent authority claiming that copyright law says you can't write down a song or an ISBN. So, Harvard Coop, for the sake of those of us who actually create something, please stop with the IP theater. And if you really want to help lower textbook prices as you tell professors, maybe you should welcome some comparison shopping.

Free movement

"Free movement by the citizen is of course as dangerous to a tyrant as free expression of ideas or the right of assembly and it is therefore controlled in most countries in the interests of security. That is why the ticketing of people and the use of identification papers are routine matters under totalitarian regimes, yet abhorrent in the United States.

This freedom of movement is the very essence of our free society, setting us apart. Like the right of assembly and the right of association, is often makes all other rights meaningful -- knowing, studying, arguing, exploring, conversing, observing and even thinking. Once the right to travel is curtailed, all other rights suffer."

-- Justice Douglas, United States Supreme Court, 1964

In a better world, people would read this quote and think about the importance of freedom of movement. Change. In a better world, I could leave postcards with this quote on the public bus for people to read. Change. In a better world, this quote would be plastered on the side of each bus because the public bus represents freedom of movement. Change. In a better world, freedom of movement would be the motivating principle of the public transit system. Ah.