Mr. Ashcroft Offers An Opinion (updated)

Uncle Sam on the Line — more sophistries, ultimately hinging, of course, on 9/11

At the outset, it is critical to understand what the immunity provisions the administration and Congress have negotiated actually do. This is not “blanket immunity,” as it is sometimes caricatured by its opponents. The Senate bill would confer immunity in only two limited circumstances: if the carrier did not do what the plaintiffs claim; or if the carrier did do what the plaintiffs claim but based on explicit assurances from the highest levels of the government that the activities in question were authorized by the president and determined to be lawful.

Longstanding principles of law hold that an American corporation is entitled to rely on assurances of legality from officials responsible for government activities. The public officials in question might be right or wrong about the advisability or legality of what they are doing, but it is their responsibility, not the company’s, to deal with the consequences if they are wrong.

To deny immunity under these circumstances would be extraordinarily unfair to any cooperating carriers. By what principle of justice should anyone face potentially ruinous liability for cooperating with intelligence activities that are authorized by the president and whose legality has been reviewed and approved by our most senior legal officials?

[…] Even more important than the inherent unfairness of requiring companies to second-guess executive-branch legal judgments are the acute dangers to which it would expose the country. One of our nation’s most important comparative advantages over our adversaries is the creativity and robustness of the private sector. To cut ourselves off from that advantage would amount to a form of unilateral disarmament.

Yet if we allow the litigation to continue, that is precisely what we will do. The message that will be sent to American companies is that they can be exposed to crippling lawsuits for helping the government with national security activities that they are explicitly assured are legal. The only rational response would be for companies to adopt an attitude of extreme wariness, even in the most urgent or clear-cut situations. To put the matter plainly, this puts American lives at risk.

If I had any confidence that my government would actually ‘fess up to their own wrongdoings in this matter, I would be willing to listen to a debate over his construction of this situation. BUT, I have no confidence of that and, without the opportunities for discovery that these lawsuits afford us, I am afraid that the scope and extent of this Government’s misapplication and misappropriation of power will be made harder and harder to find.

And, frankly, I think that it’s time that the corporations that have benefitted from getting us to rely on them to take care of us start planning to question our Government when it shows up with assurances of “legality.” Assuming that the Government is the law is like assuming that the police are the law — we know that’s problematic on a host of levels, and maybe it’s time to get firms that act as agents of the Government to remember that they are no more above the law than anyone else, and start adopting practices accordingly.

Because otherwise you can expect to see demand for encryption tools that will take the issue to a whole new level, since we will have to assume that our service providers are spying on us all the time — which may not be a bad assumption for a closed society, but one that will be particularly destructive for an open one.

And I really don’t think Mr. Ashcroft should have tried this point:

Members of both political parties in both houses of Congress have already been briefed extensively about the activities underlying the current lawsuits. Obviously, not all 535 members of Congress can have equal access to such sensitive information; the risk that the information will be compromised is simply too high. But the intelligence committees are recognized authorities on these issues and proper repositories of these secrets.

The Senate Intelligence Committee has voted 13-2 to grant immunity to telecommunication carriers that have been sued for helping the country after 9/11. Unlike most everyone else, this committee had the necessary and relevant facts when it rendered judgment. […]

All that says to me is that it’s time to get rid of those folks on the Intelligence Committees

Later: then there’s this nugget — NSA Sought Data Before 9/11pdf

Beginning in February 2001, almost seven months before the 9/11 terrorist attacks, the government’s top electronic eavesdropping organization, the National Security Agency, asked a major U.S. telecommunications carrier for information about its customers and the flow of electronic traffic across its network, according to sources familiar with the request. The carrier, Qwest Communications, refused, believing that the request was illegal unless accompanied by a court order.

Update: the letters in response (including one from Sen Russ Feingold) are not letting him get away with his game — Wiretapping and the Telecomspdf

To the Editor

Re “Uncle Sam on the Line” (Op-Ed, Nov. 5): Former Attorney General John Ashcroft leaves out a crucial point when he argues that telecommunications companies that allegedly cooperated with the administration’s warrantless wiretapping program should be shielded from lawsuits.

Telecom companies that cooperate with a government wiretap request are already immune from lawsuits, as long as they get a court order or a certification from the attorney general that the wiretap follows all applicable statutes.

This immunity provision in current law protects companies that respond to legitimate government requests for assistance. It also protects innocent Americans who expect that their communications will remain private unless the government and the companies are acting lawfully.

If companies that allegedly cooperated with the warrantless wiretapping program didn’t follow the law during the five years that the program was in existence, they should be held accountable. And courts should be allowed to rule on the legality of this program.

If we want companies and the government to follow the law in the future, retroactive immunity sets a terrible precedent.

Russ Feingold
U.S. Senator from Wisconsin
Washington, Nov. 6, 2007

This Is Going To Be Fun

More opportunities for the Chilling Effects Clearinghouse! Publishers See a Way to Track Their Content Across the Net

Copyrighted work like a news article or a picture can hop between Web sites as easily as a cut-and-paste command. But more than ever, as that material finds new audiences, the original sources might not get the direct financial benefit — in fact, they might have little idea where their work has spread.

A young company called Attributor says it has an answer, and a number of big publishers of copyrighted material say Attributor just might be right.

The company has developed software that identifies an electronic “fingerprint” for a particular piece of material — an article, a picture, a video. Then it hunts down any place across the Web where a significant chunk of that work has been copied, with or without permission.

When the use is unauthorized, Attributor’s software can automatically send a message to the site’s operators, demanding a link back to the original publisher’s site, a share of revenue from any ads on the page, or a halt to the copying.

Actually, the article itself describes a perfectly benign approach to using this sort of technology, but that’s just this story, of course. We’ll have to see what sort of temptations come to those with access to this technology.

Commissioner Copps Profiled

Copps, a liberal voice on the FCC, knows how to get his message outpdf

Everything about Michael J. Copps screams bureaucrat — until he opens his mouth.

Copps, a Democrat whose crusade against media consolidation has helped make him Hollywood’s public-policy enemy No. 1, is more proselytizer than pencil pusher.

The public airwaves, he says, are filled with “too much baloney passed off as news.” The Republican-led FCC is so lax that “unless you’re a child abuser or a wife beater, it’s a slam-dunk” to renew a TV station license. “Our country is paying a dreadful cost for this quarter-century fling with government abdication and media irresponsibility,” he said this year.

Copps’ ability to distill the complexities of media ownership into plain English and fire up crowds like a revivalist preacher helped derail an industry push in 2003 to loosen restrictions on owning broadcast stations.

Now, as the FCC prepares to tackle the volatile issue again, with Chairman Kevin J. Martin proposing a vote on new rules by the end of the year, the 67-year-old former history professor is reemerging as a hero to the firebrands fighting media consolidation.

Potential Writer’s Strike Fallout

Could a strike be a ball for Web?pdf

[I]t seems one of the biggest unknowns has to do with the vast quantities of entertainment that are now being generated for the Web — and remember, the value of scripted material broadcast over the Internet and other non-TV media is one of the major issues that writers and producers have been squaring off over. The Web, as a matter of fact, is the one obvious difference between now and ’88. Faced with a long drought of fresh scripted material on network and cable TV, are we all going to end up junkies for the junk on YouTube? Hey, catch you later on! — it’s alive again!

Simply put, will the strike be a watershed moment for Web TV, the same way the 1988 strike was for cable? Maybe convergence — how many laptops have you burned through since you last took that term seriously? — will arrive at last, a meeting of the twain.

Well, maybe. Certainly that’s the hope of the teeming legions of Silicon Valley entrepreneurs who are crossing their fingers for their own YouTube jackpot. […]

Related: Hollywood writers strike as talks failpdf Also, there’s the challenge for those writers who are also producers and/or actors in some of these shows: So-Called Show Runners Pick Sides in Looming Strike

See also New Media, New Value, Old Troubles

Semiotic Disobedience

Despite my incredibly busy schedule this term, there seem to be a few readers hanging in there with me. One of them sent me a pointer to one of her papers on SSRN: Semiotic Disobedience by Sonia Katyal. The abstract includes the following:

As public spaces have become converted into vehicles for corporate advertising – ads painted onto sidewalks and into buildings, schools, and other public spaces – product placement has soared to new heights of power and subtlety. And throughout, the law has generously offered near-sovereign protection to such symbolism through the ever-expanding vehicle of intellectual property protection. Equations between real property and intellectual property are ubiquitous. Underlying these themes is a powerful linkage between intellectual and tangible property: as one expands, so does the other.

Yet at the same time, there is another facet that is often left out of the picture, involving the increasing response of artists who have chosen to expand their activities past the boundaries of cultural dissent and into the boundaries of asserted illegality. For every movement toward enclosure that the law facilitates, there is an opposite, underappreciated movement toward liberation from control – a moment where social activism exposes the need for alternative political economies of information. And yet the difference between these marketplaces of speech – one protected, one prohibited – both captures and transcends the foundational differences between democracy and disobedience itself.

Just as previous discussions of civil disobedience focused on the need to challenge existing laws by using certain types of public and private property for expressive freedoms, today’s generation seeks to alter existing intellectual property by interrupting, appropriating, and then replacing the passage of information from creator to consumer. This Article suggests that the phenomenon of semiotic disobedience offers a radically different vantage point than Fiske’s original vision, one that underlines the importance of distributive justice in intellectual property. Thus, instead of interrogating the limits of First Amendment freedoms, as many scholars have already done, I argue that a study of semiotic disobedience reveals an even greater need to study both the core boundaries between types of properties – intellectual, real, personal – and how propertization offers a subsidy to particular types of expression over others.

I’m printing out a copy to add to my reading stack, but it looks like a very interesting take on the problem.

Guerrilla Spectrum Wars

Devices Enforce Silence of Cellphones, Illegally

Andrew reached into his shirt pocket and pushed a button on a black device the size of a cigarette pack. It sent out a powerful radio signal that cut off the chatterer’s cellphone transmission — and any others in a 30-foot radius.

“She kept talking into her phone for about 30 seconds before she realized there was no one listening on the other end,” he said. His reaction when he first discovered he could wield such power? “Oh, holy moly! Deliverance.”

As cellphone use has skyrocketed, making it hard to avoid hearing half a conversation in many public places, a small but growing band of rebels is turning to a blunt countermeasure: the cellphone jammer, a gadget that renders nearby mobile devices impotent.

At Least He Got The Metaphor Right

And sometimes that’s the battle: F.T.C. Member Vows Tighter Controls of Online Ads

A MEMBER of the Federal Trade Commission said yesterday that the agency would be exerting a tighter grip over online advertising, partly because of increased tracking by marketing companies of people’s activity on the Internet.

Jon Leibowitz, the commissioner, said he was concerned about ads being shown to children online and about the tactics advertisers are using to collect data about people.

“When you’re surfing the Internet, you never know who is peering over your shoulder or how many marketers are watching,” he said.

Ellen Goodman on the Perils of Good Intentions

Surveillance society meets parenting in a culture of fear: Big Brother meets Big Motherpdf

It’s not clear that a surveillance society actually provides more security. Consider the ubiquitous surveillance cameras at schools. What did they do for that Cleveland high school last month except to leave behind chilling, post-mortem pictures of the 14-year-old shooter? And how easy is it to drop the GPS jacket by the roadside?

Meanwhile, we may be raising a generation with low expectations of public privacy, trained by Big Mother to accept Big Brother. Did anyone notice how Lindsay Lohan and Paris Hilton made monitoring anklets into this year’s fashion accessory?

As someone who has done my fair share of speed dialing, I am a believer in the text messaging and cellphoning that keeps parents and kids in contact. But there’s a moment when the two-way tools of communication turn into the one-way tools of surveillance. Then the tether becomes a leash and parenting becomes stalking. We don’t talk; we track.

Later: See, for example, Peace of Mind When They Ask to Borrow the Car

Taking a Look at the Keepers of Lists

F.T.C. to Review Online Ads and Privacy

The Federal Trade Commission will hold meetings today and tomorrow about online privacy. The questions they will entertain include how much control people need or want over the vast trove of information that corporate America routinely collects about people as they click from site to site on the Internet.

The FTC’s media advisory for this event includes links to the agenda and the webcast (A transcript will eventually be available.) The name of the workshop is “eHavioral Advertising: Tracking, Targeting, & Technology”

Listening to the webcast at 11:42AM, I am intrigued by the emerging discussion that suggests that all of this data collection is for the benefit of the consumer — which it can be — but it also can be a problem. And the excuse that business is doing it so badly now, how can it possibly be that there’s a problem. Finally, the argument that, since consumers are getting free services in exchange for their data, they seem to be getting an acceptable deal and it’s not a problem — the argument that the EU privacy rules are, in fact, inhibiting European users is also being made.

The rhetoric is quite illuminating.