Dear Government Snoops: Just Come Get Me Now

For a number of (really good) reasons, I’ve not been able to spend much time following the endless, ever-forthcoming details about the US government’s decision to vacuum up as much of our communication data as possible.

Even from such a less-than-ideal base of knowledge, and even though it will take months or years for everything to come out (if ever), I already believe the following:

What Edward Snowden did is one of the most heroic, medal-worthy acts by an American so far this century. I say this even though I’m also horrified that somebody with his scant qualifications was in such a position.

No mountain of prestigious journalistic prizes can repay the debt owed to the Guardian and Glenn Greenwald by the citizens of this country.

President Obama should immediately grant Snowden a full presidential pardon — and, further, give Snowden his own (prematurely given and, as is now clear, unearned) Nobel Peace Prize as a token of his gratitude.

Concerns about the steady erosion of civil liberties and all-too-quick slide into a surveillance state are finally starting to get a sliver of the traction they should have gotten since roughly the end of 2001.

The erosion of civil liberties via state surveillance has been accompanied by an ever-shrinking capacity for citizens to monitor the state. This ranges from the mundane (e.g., police officers routinely harassing, arresting, injuring, and/or falsely charging people for photographing or recording them in public) to the profound (e.g., charging journalists as “co-conspirators” for soliciting restricted information).

There is perhaps no better test of whether technology activists will be able to mobilize the public en masse on behalf of a desired change — rather than, as in the SOPA blackout, against an unpopular proposed change.

Whether or not an anti-surveillance movement can effect major changes in policy is not a fair measure of whether and how well such a movement performs as a movement; better measures include people mobilized to action, mainstream coverage, and policymakers and allies recruited.

Regardless of whether it is fair to measure an anti-surveillance movement based on policy outcomes, such policy outcomes may be a fair way to measure the viability of our democracy. If we can’t get people on the left, right, and center to join together to take back the Fourth Amendment, the promises of our Constitution are pretty hollow indeed. (Satire or not, this hits close to home.)

If I were in the position of Snowden, Greenwald, or the Guardian, I hope and believe that I would make pretty much the same decisions.

I say all of this publicly, even though I no longer have faith that I can do so without fear of retribution (yes, I use that term deliberately) by the state.

So, to the snoops that are undoubtedly listening — even though it’s unlikely that any human will ever actually read this tiny speck in an ocean of data — come and get me.

If what Snowden did lands him in prison, being there next to him would be an honor. If blowing the lid off a giant, proto-police-state phone and internet surveillance operation is wrong, I don’t want to be right. If leaking state secrets in the public interest puts one in danger of torture, indefinite detention, exile, or being disappeared, we’re all in danger — and for most people, this will be because too few will be brave enough to take such a risk to protect the citizenry from the state.

So consider me part of the conspiracy, Mr./Ms. Snoop. Tell your supervisors that we have a dissident who needs closer scrutiny and maybe a visit from an agent.

I’d rather go to prison, right now, for the rest of my life than to live in complicity as we slide ever-closer toward becoming a bona fide police state.

And just to increase the odds that a real human does see this: bombs Al Qaeda assassinate infidels fertilizer kill death murder planes airports President Obama Capitol White House 9/11 TNT flying with liquids in containers larger than 100 ml (3 oz. for you SAE holdouts) and not taking off my accursed shoes. So there.

P.S. If there’s one consequence I do fear as a result of this post specifically, it’s being put on the no-fly list — itself a particularly apt illustration of the intersection of terrorism paranoia, unchecked executive branch power, and rank bureaucratic incompetence.

House Rebuffs Immunity for Spying Telecoms

On Thursday, the US House passed a FISA reform bill without granting immunity to telecommunications companies accused of assisting illegal eavesdropping on US citizens.

As we noted last month, the White House and telecoms pressed for retroactive immunity. This pressure has not worked–at least not yet–despite Bush’s threat of a veto.

House Reporter Shield Bill Excludes Amateurs

As mourned at the Citizen Media Law Project, the final House version of the bill (HR 2102) to protect reporters from revealing confidential sources was amended specifically to exclude unpaid journalists.

Sadly, this amendment was proposed by the bill’s lead authors, Rick Boucher (D-VA) and Mike Pence (R-IN). Boucher is generally one of the few members of Congress who “gets it” when it comes to tech policy. I suspect other members pushed him on this, but the final vote (398 to 21) suggests it may not have been a necessary compromise.

Could there be better proof that politicians do not take the internet seriously? Bloggers investigate and break real news, and some very good ones do it for free. I am skeptical the Senate will force the issue in conference committee.

How (Not) to Do FISA Reform

Here is a letter I just sent to Rep. Albio Sires (D-NJ), my elected representative, with added links:

Dear Rep. Sires,

I am a voter in your district, and I am writing in regards to H.R. 3773, the RESTORE Act. I urge you not to support this legislation unless it meets two key conditions.

First, the bill must not be amended to grant immunity for telecommunications providers who cooperated with the Bush administration’s illegal wiretapping program. Such a grant of immunity will cut important court cases off at the knees before we can learn the full nature of the administration’s spying. In short, you must not reward the administration for their blatant disregard for the law of the land, including the very balanced Foreign Intelligence Surveillance Act, and you must not reward common carriers for their willingness to join in the illegalities. Bush’s threat to veto the legislation without such a grant of immunity only confirms concerns that the law has been broken.

Second, do not approve the bill without all of its current protections for civil liberties. In particular, insist that the bill retain or strengthen the following provisions:

• Section 5, requiring oversight and periodic audits of surveillance activities
• Section 7, requiring the Department of Justice to conduct a timely audit of all warrantless surveillance programs since September 11, 2001
• Section 8, requiring record keeping of all surveillance of United States persons
• Section 10, reiterating FISA as the sole legal justification for the gathering of electronic surveillance

Not incidentally, the Bush administration’s willful disregard for FISA is an impeachable act if ever there was one, but sadly it is not the only one committed in the past seven years. Speaker Pelosi may consider impeachment to be off the table, but I do not, and if you and your colleagues do not stand up for the Constitution, I fear for the future of our democracy.


Bill D. Herman

Verizon Sues FCC over Spectrum Rules

In its latest attempt to block the FCC from imposing modest interconnection requirements on the 700 MHz spectrum auction, Verizon filed suit this week in the DC Circuit.

The Commission wants end users to be able to use the device of their choosing and the applications of their choosing–what Tim Wu calls “Wireless Carterfone.”

For more on what nonprofits such as Public Knowledge and companies such as (and most visibly) Google were pushing for in the first place, see this PK post from July.

Seattle Times Special Series Criticizes Media Policy

In a series begun yesterday, the Seattle Times is taking on the sorry state of the media industry and media policy.

Editorial Page Editor James Vesely has a brief introduction. Yesterday, they ran an opinion piece by FCC Commissioner Michael Copps. Today, it’s Penn Law School luminary Ed Baker.

Today, they also ran a scathing condemnation of the current FCC’s policy.

The Problem with Game Regulation and Complete Playthrough

Game Politics reports that another video game sales restriction law has been overturned in court. This time, it was the long-awaited decision on California’s 2005 law, upon which some other (since stalled or overturned) bills and laws were built. Game Politics is also hosting a PDF of the judge’s ruling, which looks a lot like the other rulings from what I’ve seen so far (as described here; my explanation of strict scrutiny was a bit muddled then, but you get the basic idea).

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Lessig on Grokster and Viacom

In an op-ed in yesterday’s New York Times, Stanford law professor Lawrence Lessig describes the legal uncertainty surrounding the Viacom suit as impending “copyright chaos.”

Lessig blames the 2005 Grokster decision for inviting Viacom’s lawsuit of YouTube. The Supremes overstepped their bounds, usurping Congressional authority to damn new technologies, heightening the risk for innovators and reducing our overall tech productivity, he argues. It’s even more irresponsible as Congress was already considering the INDUCE Act, which was similar to the case law set out in Grokster.

I agree with the effects, and I also agree Grokster had an important relationship with INDUCE. However, one expert I know explained that, were the push behind INDUCE sincere, it was totally incompetent. Rather, it was more likely a hypothetical threat, leverage to force the Supremes’ hands.

Congress is a far friendlier venue for copyright holders than are the courts. Thus, the Supremes might have been scared to apply Sony and refuse to impugn the P2P operators. That would have better upheld the previous precedent; Sony explicitly invited infringing uses of the VCR in its early ads, and all P2P networks were and are used for noninfringing purposes.

Nobody who could do so would ever confirm this, but I’ve long suspected the Grokster decision was motivated at least in part by the fear that we might have gotten something far worse. Which says something about the state of copyright politics.

TX court: ISPs aren’t internet editors. (And why that matters for net neutrality.)

In a child porn case in Texas, a federal judge dismissed Yahoo! as a defendant on the grounds that service providers are not responsible for the content posted by others.

The case, Doe v. Bates (pdf), involves a man who moderated a Yahoo! group that traded in the illegal content. In addition to going after the moderator, (Mark Bates, who is already in prison for his behavior), the plaintiff went after Yahoo! with allegations such as conspiracy and negligence.

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Thoughts on the Guerilla Gamemaker Competition

The Slamdance Festival runs alongside the Sundance Film Festival, styling itself as an edgier sort of independent event. It also hosts a “Guerilla Gamemaker Competition,” featuring digital games created by independent designers. Slamdance may have called its indie cred into question this year, however, by dropping a controversial game from its finalists: Super Columbine Massacre RPG! The reaction was probably stronger than the festival organizers anticipated, perhaps leaving us with an important lesson about the power of video games as expressive speech.

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