What's At Stake In Apple/FBI Fight: Who Gets To Set The Rules That Govern Your Privacy & Security

from the this-is-important dept

Lots of people, mainly those supporting the DOJ/FBI's view of the Apple fight, have been arguing that this isn't a big deal. They're just asking for one small thing. Other people have tried to examine "what's at stake" in the case, with a number of the arguments falling into the typical "privacy v. security" framing, or even something around precedents related to privacy and security. However, Jennifer Granick recently wrote a great piece that does a much better job framing what's truly at stake. It's not privacy vs. security at all, but rather who gets to set the rules over how software works in an era where software controls everything.

We live in a software-defined world. In 2000, Lawrence Lessig wrote that Code is Law — the software and hardware that comprise cyberspace are powerful regulators that can either protect or threaten liberty. A few years ago, Mark Andreessen wrote that software was eating the world, pointing to a trend that is hockey sticking today. Software is redefining everything, even national defense. But, software is written by humans. Increasingly, our reality will obey the rules encoded in software, not of Newtonian physics. Software defines what we can do and what can be done to us. It protects our privacy and ensures security, or not. Software design can be liberty-friendly or tyranny-friendly.

This battle is over who gets to control software, and thus the basic rules of the world we live in. Who will write the proverbial laws of physics in the digital world? Is it the FBI and DOJ? Is it the US Congress? Is it private industry? Or is it going to be individuals around the world making choices that will empower us to protect ourselves — for better or for worse?

That's a big question -- and it's not necessarily one that should be decided by a magistrate judge, making use of a law from the 18th century.

The big question then becomes: Are people going to be forced to live in a surveillance-friendly world? Or will the public be able to choose products — phones, computers, apps — that keep our private information, conversations, and thoughts secure?

Right now, the FBI wants to decide these questions with reference to a law that was originally passed in 1789. The All Writs Act allows courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” Obviously, Congress wasn’t considering iPhone security at the time. The AWA has no internal limits and provides no guidance for courts on how to weigh individual privacy interests with corporate liberty and business interests with public safety interests. It is an utterly inappropriate vehicle for compelling forensic assistance.

And if the DOJ wins this case, it's pretty clear where this goes:

If the All Writs Act can be used in this way — to force a company to develop forensic software that the government wants to deploy in a single case of terrorism — it could be used in any number of other (currently unforeseen) circumstances.

In other words, design mandates will be next. In fact, maybe it’s already happening behind our backs. When the Snowden documents showed that Microsoft had created surveillance backdoors in Skype, Outlook.com, and Hotmail, the company issued a statement. It said:

Finally when we upgrade or update products legal obligations may in some circumstances require that we maintain the ability to provide information in response to a law enforcement or national security request. There are aspects of this debate that we wish we were able to discuss more freely. That’s why we’ve argued for additional transparency that would help everyone understand and debate these important issues.

At the Center for Internet and Society, we’ve been trying to figure out what those legal obligations are. I wonder if these AWA arguments are part of it.

To make sound policy in this space, the public needs to know what the government is forcing companies to do, the full picture. This San Bernardino case is just one salvo in the ongoing war between a surveillance-friendly world and a surveillance-resistant world. The stakes for liberty, security, and privacy — for control over our software-defined world — are high.

This is not about one phone. It's not about one case. It's not just about encryption. It's about how we work as a society and who gets to set the rules. That's kind of a big deal.

Filed Under: fbi, government, jennifer granick, people, privacy, rules, security, technology
Companies: apple

Activist Tells Court That Since Corporations Are People, He Can Drive In The Carpool Lane With Incorporation Papers

from the nice-try,-but,-no dept

I know that many people get up in arms over the concept of corporate personhood, but the reality is often a lot less problematic than many people make it out to be. It's not a concept that is free from problems, but it's not quite as silly as some argue. Still, it sometimes does lead to some amusing stunts. For example, a couple years ago, a company tried to run for President, in an effort to make a statement on the issue. Up in Marin County (just north of San Francisco) an activist has tried a similar move, arguing that he's able to drive in the carpool lane without another human passenger because he had incorporation documents for a company riding along in the passenger seat. Apparently, he's actually been doing this for about a decade, just waiting to get pulled over.

It finally happened and the driver, Jonathan Frieman, made his argument -- and the somewhat befuddled patrolman told Frieman to take it up with the court. That finally happened recently, and Frieman's lawyer actually made a fairly compelling legal argument. He noted that California Vehicle Code Section 470 specifically defines a "person" by saying it "includes a natural person, firm, copartnership, association, limited liability company, or corporation." It also discusses the carpool lane by saying, "No person shall drive a vehicle upon those lanes except in conformity with the instructions imparted by the official traffic control devices." Finally, the street signs themselves say "2 or more persons per vehicle." Thus, his lawyer argued, at the very least, this is unconstitutionally vague.

“Central here is the concept of double meaning,” Greene said in court. “Citizens should not be left to guess when he or she is in violation of the statute.”

The judge, however, did not buy it, pointing to another section of the Vehicle Code, on the purpose of the carpool lanes:

Judge Drago also referenced California Vehicle Code 21655.5, noting instead subsection F, which states “It is the intent of the Legislature, in amending this section, to stimulate and encourage the development of ways and means of relieving traffic congestion on California highways and, at the same time, to encourage individual citizens to pool their vehicular resources and thereby conserve fuel and lessen emission of air pollutants.”

He then noted that Frieman's workaround didn't match the intentions.

It seems like the judge may have gotten to the right answer, but I'd argue for the wrong reasons. First of all, while the intention of the legislature is helpful, it doesn't excuse it from poorly written legislation which could be seen as being unconstitutionally vague. However, it seems to me there's a much easier way for the judge to reach the same conclusion without going down that path: just point out that incorporation documents are not the corporation itself. That's both accurate and would solve the issue. Incorporation documents explain that a corporation has been created, but they are not "the corporation." A birth certificate may announce the arrival of a person, but the document itself is not "a baby." I'm somewhat surprised the judge didn't just go with that as an answer.

Either way, it sounds like this isn't over, as Frieman has announced his intentions to file an appeal -- which is to be expected, since much of this really appears to be a form of protest against the very concept of corporate personage.

Filed Under: carpool lane, corporations, driving, jonathan frieman, people

Amanda Palmer Unleashes The Voice Of The People About Health Insurance Via Twitter

from the it-all-comes-together dept

As mentioned, last week, we held an all day brainstorming event, bringing together artists and entrepreneurs to talk about the challenges and opportunities that we all face, and to see if there are ways to help each other. I'll have a full writeup on that later this week, but one point that was raised by some of the musicians at the session was that "success" can mean different things to different people, and one full-time musician pointed out that just being able to afford her own health insurance was a kind of "success," in that it showed she'd been able to earn enough to cover that bare minimum of "necessities." So it's interesting to see, just days later, that Amanda Palmer is making a lot of news today with her fascinating #InsurancePoll campaign, which she started after reading Nicholas Kristof's story about his college roommate, who has prostate cancer and is in bad shape -- in large part because he put off going to the doctor since he didn't have health insurance. In response, Amanda realized that many musicians, similarly, do not have health insurance, and she tweeted about it:

most small-to-mid-level musicians i know don't have health insurance. some musicians find tricky ways, some pay, most take the risk & pray.
when i was in my early twenties, buying my own insurance would have been equal half my rent. it just didn't seem like an option. my parents had just watched the death of my step-brother (uninsured when stricken with a disease) almost destroy the family bank, and so they DEMANDED i get insurance.
we fought.
they offered to pay half.
i agreed.
i was lucky.
many aren't.

From there, lots of other people responded with stories about their own health insurance situation, and she decided to ask people more directly about their own health insurance situation with a quick poll question:

quick twitter poll. 1) COUNTRY?! 2) profession? 3) insured? 4) if not, why not, if so, at what cost per month (or covered by job)?

— Amanda Palmer (@amandapalmer) October 14, 2012

The end result was tons of people responding, most using the #InsurancePoll hashtag. That seemed quite interesting to Amanda, who got a volunteer to start tallying up all of the info. And she noticed some of the commentary, which noted that people in various countries were somewhat unaware of how things were elsewhere:

people OUTSIDE the US were looking at all the tweets from the US and feeling really, really, really bad for us. and some younger tweeters (teenagers, i can only assume) were shocked that we americans don't have what they have (the NHS was getting a lot of love and support from the brits, especially seeing as it's under threat).

people INSIDE the US couldn't believe what people OUTSIDE the US didn't KNOW. this is the amazing power of twitter sometimes. we all think we share common knowledge, and then something like this pops up and BAM – you see a whole bunch of people in different countries shocking the hell out of each other. we all know that lance armstrong doped, that lady gaga gained weight, , etc….but tons of people in the UK/Finland/Australia/etc don't know the extent to which US people FREAK OUT on a daily/monthly/yearly basis about insurance. how much it changes our lives. and how EVERYbody has a story.

No matter what your stand is on health insurance or healthcare, you can't deny that this bit of information sharing is both powerful and impressive. Amanda and the volunteer are going to tally up all the data and release it when it's ready, which should be interesting as well. While this is hardly a scientific or randomized survey, it is interesting information that is making more people aware of the situation that others are in. When you think about the power of social media to even create such a discussion (outside the normal realms of political fighting), it's really amazing.

Filed Under: amanda palmer, education, health insurance, information, people, sharing, social media

Some Old Guy Can't Come Up With Any New Ideas; So He Says There Are No New Ideas & It's Twitter's Fault

from the is-this-crap-worth-publishing? dept

Quite a week for the luddites out there. First we get Rob Levine's silly screed about the internet killing off a bunch of industries that are actually thriving. And now we have the NY Times publishing absolute tripe from Neal Gabler, bizarrely and ridiculously claiming that the age of "big ideas" is over, and it's all the fault of Twitter and Facebook. It's incredible that the NY Times would publish such absolute garbage. Nowhere does Gabler actually support his thesis.

It's yet another example of "back in the old days" mythological thinking, where someone, who only remembers the "highlights" of a bygone era, is upset that there's a lot of other stuff going on in the modern era as well. Gabler points to a bunch of "big thinkers" from the past -- Einstein, Carl Sagan, Stephen Jay Gould, Betty Friedan and others. And then insists that no one like that is showing up today -- or if they are, they're being ignored. This is, plainly speaking, ridiculous. He points to Richard Dawkins, Steven Pinker and Jonathan Haidt as "big thinkers" of today who are mostly ignored. Really?!? All three are pretty widely known, and I'd bet are pretty much equally known in the world as his initial list at similar points in their life and career. Gabler just seems to have an arbitrary standard of how well known certain "big thinkers" are.

The real crux of Gabler's argument appears to be that we're all doing too much of that tweeting and stuff, such that we no longer have time to think. And his scientific evidence to back this up is... oh look, absolutely nothing.

It is certainly no accident that the post-idea world has sprung up alongside the social networking world. Even though there are sites and blogs dedicated to ideas, Twitter, Facebook, Myspace, Flickr, etc., the most popular sites on the Web, are basically information exchanges, designed to feed the insatiable information hunger, though this is hardly the kind of information that generates ideas. It is largely useless except insofar as it makes the possessor of the information feel, well, informed. Of course, one could argue that these sites are no different than conversation was for previous generations, and that conversation seldom generated big ideas either, and one would be right.

BUT the analogy isn�t perfect. For one thing, social networking sites are the primary form of communication among young people, and they are supplanting print, which is where ideas have typically gestated. For another, social networking sites engender habits of mind that are inimical to the kind of deliberate discourse that gives rise to ideas. Instead of theories, hypotheses and grand arguments, we get instant 140-character tweets about eating a sandwich or watching a TV show. While social networking may enlarge one�s circle and even introduce one to strangers, this is not the same thing as enlarging one�s intellectual universe. Indeed, the gab of social networking tends to shrink one�s universe to oneself and one�s friends, while thoughts organized in words, whether online or on the page, enlarge one�s focus.

Can't there just be a rule? If you ever trash Twitter because someone tweets about eating a sandwich for lunch, we all just agree that person is too clueless to listen to any more? That tired old line has been used so often and the only thing it shows is one's ignorance of Twitter.

But more to the point, Gabler is reminiscing about a world that never existed. "Instead of theories, hypotheses and grand arguments, we get instant 140-character tweets about eating a sandwich or watching a TV show." And in what world did millions of people sit around and discuss theories, hypotheses and grand arguments? Sure there are some places where some people did that, and they still do. In fact, those "theories, hypotheses and grand arguments" appear to happen much more frequently, in much more detail and with a wider audience online these days. I often find out about them via the smart people I follow on Twitter.

And while social media may not have enlarged Gabler's intellectual universe, it has massively enlarged mine. Thanks to Twitter specifically, I've been able to meet tons of fascinatingly smart people I never would have met otherwise. Sure, not all of it is brilliant talk, but Gabler seems to make the same fundamental error that so many "back in my day" people make: which is to assume that because a tool can be used for random conversation that somehow cancels out intelligent conversation. I can talk about the sandwich I ate for lunch and I can discuss big intellectually stimulating ideas.

But Gabler seems to have this view that because some people discuss stuff he finds beneath him, they can't possibly also be discussing important stuff. He also seems to ignore that back in his mythical "good old days" people discussed equally as ridiculous things:

The collection itself is exhausting: what each of our friends is doing at that particular moment and then the next moment and the next one; who Jennifer Aniston is dating right now; which video is going viral on YouTube this hour; what Princess Letizia or Kate Middleton is wearing that day. In effect, we are living within the nimbus of an informational Gresham�s law in which trivial information pushes out significant information, but it is also an ideational Gresham�s law in which information, trivial or not, pushes out ideas.

If Gabler thinks that there wasn't similar gossip and banal discussions back when he wasn't an old man screaming at kids on his lawn, he apparently wasn't paying very close attention to what the people around him were discussing. There are plenty of "big ideas" out there, contrary to Gabler's claim, but the only really stupid one I've seen lately is this one... from Gabler. With that I'm going back to reading some more interesting and thought provoking ideas... which I most likely found on Twitter.

Filed Under: communication, ideas, neal gabler, people, social media

The Distributed Party Of 'We' Is Already In Control

from the this-ain't-no-tea-party dept

I tend not to be much of a believer in political "parties." They always seem to get lost in groupthink around what's best for "the party," rather than what's best, period. I even tend to have issues with groups like The Pirate Party. While I support many of the ideals and concepts within the party's platform, I don't agree with everything they have to say, and still think the use of "pirate" in the name, while attention grabbing and perhaps useful in the short-term, is quite limiting long-term. And yet, I'm certainly intrigued by a lot of what's been happening over the past few months, in terms of somewhat ad hoc groups coming together and protesting things they just know are not right. While I still don't agree with the denial of service tactics of "Anonymous" and its Operation Payback, I've been saying for a while that this really is a moment when centralized top-down legacy systems are coming into conflict with distributed, decentralized, bottom-up systems -- and not understanding them at all.

Michael Scott points us to an opinion piece from lawyer Douglas Wood, in which he does a nice job describing what he refers to as "The Party of We," which he notes is already in control.

I think that final point is the part that is the most interesting, and the least understood in many of the discussions around what's happening online. In the past, with traditional systems, if you didn't agree with something, you would just protest. But if you look at what's been happening lately, when the public doesn't agree with something -- official secrecy, draconian copyright laws, censorship, privacy violations, etc. -- rather than just protesting, they're simply routing around those things. It's an incredibly important point. They're not protesting by saying "this will not stand." They're protesting by saying "your laws don't matter, because we can simply route around them."

That's a hell of a lot more powerful than most people realize.

Of course, I already know that some will mock this, saying that it's just a bunch of kids (probably "entitled" kids -- or maybe "freeloading" kids) "breaking the law" and such. Or they'll say that the recent arrests of a few folks show that they can't really route around the system. But I think that significantly underestimates the long-term impacts of what's happening. Whether or not you want to call it the "We Party," it does seem clear that a large (and growing) group of people have realized that code trumps laws, and no matter what laws are put in place to try to beat back code, code will always win.

What's most important is the tipping point, spawned not by Assange but by a new body politic -- a new party of individuals bonded by commonality of interest not defined by national or geographic boundaries. The Party of We.

In response to the attacks on Wikileaks, this virtual We Party, comprised of citizens of the world, unleashed an unprecedented -- and united -- attack on parts of the infrastructure that transact payments and sustain eCommerce and for a brief moment shut critical parts of it down.

This was unprecedented not because it hasn't been tried before (even with some success), but because its success, however brief the moment may have been, was only reversed by those who started it and who had a change of heart. Furthermore, it was novel in its motivation not to hack a system or engage in fraud or greed, but rather in support of a cause -- a belief in the idea and purity of unencumbered speech.

What's left out of this is that it's not actually a party. It's not actually an organization at all, which is part of what makes it so powerful. With an organization you can attack the organization or cut off its head. When it's just a whole bunch of people who understand the power of technology, plucking out a few people that can be tracked down does nothing other than attract more people to the power of code.

Whether or not you agree with the concept of "The We Party," or what they're doing, it's difficult to not recognize that what's been happening is significant, meaningful and important.

Filed Under: anonymous, distributed, people, politics, technology, we, wikileaks

Company Decides To Run For Congress

from the brilliant dept

Earlier this week, we jokingly pointed out that with the Supreme Court's ruling on how corporations were people, a company like Google could run for President. Well, it appears that others have the same basic idea. A PR firm in Maryland has announced that it's running for Congress in Maryland's 8th District and has put together a nice campaign ad:

Filed Under: companies, congress, free speech, people

Google For President? If Corporations Are People...

from the free-speech-and-its-consequences dept

A bunch of folks have sent in the Citizens United Supreme Court decision and asking for my opinion on it. The ruling came out last week when I was traveling, and I didn't have that much time to look at the details or think about what it all meant until now. It's one of those cases where I see both sides of the argument, but am troubled by what comes out of a ruling in either direction. There is a real worry of a First Amendment problem if you restrict any kind of speech -- but I do worry about giving corporations even greater power in influencing elections. But my real issue with the ruling goes back deeper, with the generally accepted concept that a corporation is a person. That seems like an even bigger problem, because the fact is that we don't actually treat a corporation like a person at all. A corporation does not get a vote. A corporation cannot be put in jail (yes, its executives or employees might be able to, but not the same thing). And a corporation may not run for office. This point was brought to my attention by my friend Jeff, who sent over a link to a story arguing (in a very much tongue-in-cheek manner) that if a corporation has the same rights as a person, why can't Google run for President.

That said, while I would remove the idea that a corporation is ever "a person," that doesn't change the fact that I would be careful about limiting any type of speech -- including a politically motivated movie, which was at the heart of this case. Instead, I tend to think that the problem is one of information (not money) asymmetry. And while it may appear idealistic, this is the sort of thing that the internet is helping to combat, even if it takes time, and there are some losses early on. In copyright policy, it's true that the entertainment industry has still been able to push through laws in its favor over the past few years, but a lot more people are paying attention to the issue, and the changes that are getting through are of much lower impact than what they used to regularly get through. I don't think that the entertainment industry would be able to push through the kind of massive sweeping changes that it has successfully pushed through in the past. Instead, I tend to agree with Julian Sanchez, in discussing a recent conversation with Larry Lessig, that points to a more organic way to respond to corporate influence on politics:

Look at it this way: We don't get draconian copyright policies because the RIAA and MPAA actually have more money, all told, than those of us who'd benefit from a more balanced intellectual property regime.  They're richer, of course, but there's a lot more of us. The problem is that their resources are already pooled, and they're far more acutely aware of which side their bread is buttered on. That's the asymmetry we need to address. And as Clay Shirky has so cogently argued, we may finally have the means to do so, because for the first time in human history, we have in the Internet (and Web 2.0 especially) a mass medium that is simultaneously good at enabling interactive conversations (as the telephone does) and groups (as magazines or television did).  The costs of processing and disseminating information have fallen dramatically over the past decade, and now the same is happening to the costs of organizing people and coordinating action.

That's why I think Lessig's focus on public finance as a silver bullet is less likely to bear fruit than an array of solutions that exploit transformative technology--something he's so keenly analyzed in his writing on Free Culture. My colleague Jim Harper's Washington Watch project, or the efforts of the folks at the Sunlight Foundation, are one part of the solution: Backroom deals are typically held in the back room for a reason. Sites like ActBlue and Slatecard are another, because they make it easier for a national audience to punish bad actors in their local races.

This doesn't mean that corporate influence has been -- or ever will be -- neutralized. But it does suggest that it's becoming easier for the voices of those actually impacted to speak up and make themselves heard. It will take a lot of effort -- and certainly, corporations are often a lot more tied into the levers of power, but there is more of an opportunity for groups of people to use information tools to their advantage, and to counter efforts by anyone, whether its corporations or individuals, to push through harmful legislation. It may seem idealistic (and, it is), but the unintended consequences of barring speech seems like it could be much worse.

Filed Under: campaign finance, citizens united, corporations, people, supreme court

Chicago Tribune Columnist: Hey You People Online With Opinions... Get Off My Lawn!

from the that-bad,-huh? dept

Reader Cannen alerts us to yet another column by yet another old school newspaper guy whining about the fact that "the people" now have the ability to have their voices heard. What's funny is that his own column seems to contradict his statements.

Don't get me wrong. I am also an outraged narcissist, but I had to work six-hour shifts in Bakersfield, Calif., to earn my stripes as a communicator. Nowadays, having a Twitter page qualifies a person to give commentary on CNN. I am not interested in the take of @stinky on the Fort Hood shootings or any other current events. I am watching CNN because I expect them to gather the news, not act as a clearinghouse for any bonehead with a computer, a cable modem and a half-baked opinion.

Ah yes, so because today it's easier for people to have a voice, it's bad. Yes, and you used to walk to school uphill both ways in the snow and television was called radio and had no pictures. But the world improves and progress comes along and gives more people a voice and that's bad how exactly?

With the advent of Twitter, Facebook, instant messaging and texting, now almost any fool can set up his or her broadcast hub. Then the likes of CNN, Fox News, Oprah and even the Tribune play right into their hands, giving them instant access to the rest of the world. I beseech the online editors at this paper to turn off the "comments" after each article. If people have opinions about something that they've just read, let them write a letter to the editor.

Yes, but "any fool" doesn't get quite the attention as, say, a fool who blasts the fact that people have a voice in a major national newspaper, right? Who cares that anyone can say what they want. Most people don't see those complaints. You call it a "broadcast hub" but most people's Twitter accounts don't have very many followers. That's not the issue at all. The actual complaint seems to be that CNN and Fox and others have elevated a few of these folks (a tiny percentage of the overall population using these tools), and you don't like it because.... what, exactly? Because they compete with you in being a public "fool"?

Most of my career has been spent in radio, where call-in comments are somewhat encouraged. The main difference is that we can hang up on people.

Ok, let me get this straight. Before you were complaining that CNN and Fox were putting these people on their shows, but then you say at least on radio you could "hang up on people." Do you not sense the contradiction? CNN and Fox can just as easily "hang up" on these people too. So what's the difference?

Basically, it sounds like the guy is pissed off that he's no longer the only person with an opinion getting heard. But, of course, he's missing the point in blaming the new technology. Yes, lots of people have a voice, but most still don't get heard very far. The folks who are getting on TV or are making their voices heard are because they're saying something that resonates, whether it's stupid or not. And, no, maybe they didn't have to practice being a public moron in some small town first, but is that really a necessity?

Filed Under: opinions, people, social media, voice

Magazines Looking To Raise Prices?

from the that'll-backfire dept

As newspapers are struggling with the question of whether or not to charge for content online as their print subscribers decrease, Aaron Martin-Colby points us to an article about how some magazines are also looking to increase the subscription fees for their paper magazines. Over the past few years, many magazines have followed the natural progression in a competitive market, and continually dropped their subscription prices, and made up the difference with advertising. Yet, some magazines are trying to buck that trend. The article highlights The Economist and People as examples of magazines who recently raised prices and still saw subscriptions rise. It will be interesting to see if that's sustained, however.

Oddly, the article doesn't even mention the internet as competition -- which seems to be leaving out a big part of the equation. The Economist and People are the sorts of magazines that people have subscribed to for many years, with a strong loyalty. So, I can see them sustaining subscribers even with a modest price increase -- but as alternative sources become more and more popular, you have to wonder if people will start to question if it's worth paying so much, when there's content that's just as good (if not better) available for free online.

Filed Under: economist, magazines, people, prices