From Boing Boing, AT&T's new terms of service allow them to cancel your service if you criticize them. Under § 5.1, "Suspension and Termination":

Your Service may be suspended or terminated if your payment is past due and such condition continues un-remedied for thirty (30) days. In addition, AT&T may immediately terminate or suspend all or a portion of your Service, any Member ID, electronic mail address, IP address, Universal Resource Locator or domain name used by you, without notice, for conduct that AT&T believes [...] (c) tends to damage the name or reputation of AT&T, or its parents, affiliates and subsidiaries [emphasis mine].

Outraged? You should be. But AT&T, as a private company, isn't bound to honor the First Amendment; that affects only the government. However, as a "common carrier," AT&T may be bound by 47 U.S.C. 202(a), which prevents common carriers from making

any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services for or in connection with like communication service, directly or indirectly, by any means or device, or to make or give any undue or unreasonable preference or advantage to any particular person, class of persons, or locality, or to subject any particular person, class of persons, or locality to any undue or unreasonable prejudice or disadvantage.

It sounds like AT&T's refusal to permit customers to criticize it constitutes "discrimination in practices." Any lawyers out there?

Posted by Mark at 1:04 PM | Permalink | Comments (0) | TrackBacks (0)

The case Morse v. Frederick, 06-278, is a strange one. It began in 2002 when respondent Frederick, a high school student, unfurled a banner as the Olympic torch went by. The banner read, "Bong Hits 4 Jesus." Obviously, Frederick was suspended, but he later contested his suspension, claiming that his First Amendment rights were violated.

The case was monitored by those who monitor cases dealing with free speech in school. Since 1969's Tinker v. Des Moines, 393 U.S. 503, which established that children in school do have some First Amendment rights, successive Supreme Courts have mediated those rights. In Bethel School District v. Fraser, 478 U.S. 675 (1986), the Court ruled that a school can prohibit speech that may be "offensively lewd and indecent." Two years later, in Hazelwood School District v. Kuhlmeier, 484 U.S. 360, the Court affirmed censorship of school-sponsored student newspapers on the grounds that schools may exercise such censorship if the content of the newspapers is at odds with the school's values and that same content may be perceived to be endorsed by the school.

Today, the Supreme Court released its fragmented opinion, with five justices definitely in favor of the suspension, three definitely opposed, and Justice Breyer concurring in part and dissenting in part. The major problem with Frederick's argument is that he claimed that he was not at school, and therefore, not subject to school regulations regarding speech that promotes drug use. "At the outset, we reject Frederick's argument that this is not a school speech case -- as has every other authority to address this question," said Chief Justice Roberts, writing for the majority. "The event occurred during normal school hours. It was sanctioned by Principal Morse 'as an approved social event or class trip.'" So, Frederick was silly to suggest that he wasn't at school. Every school district's policy says that when a student is on a field trip or other school-sponsored event, he or she is considered to be at school, and school rules apply. This I will grant. Once that has been established, the case is pretty much all over. The school is well within its rights, as demonstrated in Hazelwood, to censor speech that is inconsistent with its values.

What puzzles me about the opinion, though, is the amount of space Roberts devotes to talking about a school's mission of "deterring drug use." For four pages, the chief justice goes on about how drug abuse in schools is a problem, and how "Congress has declared that part of a school's job is educating students about the dangers of illegal drug use." I happen to believe that the above is not "part of a school's job," but as I'm not in Congress, that really doesn't matter. What the court should have focused on is the "material or substantial disruption" portion of the case, not the alleged promotion of drug use. (Frederick himself claims that the signage was "nonsense" designed to garner attention, but apparently reader response criticism has won the day.)

Justice Thomas concurred, writing a long and boring opinion about the history of speech restriction in schools, beginning with the common law definition of in loco parentis ("in the place of the parents"), which is where speech restrictions in school begin and why colleges and universities are not subject to the same restrictions as high schools. Thomas then goes on to stupidly suggest that Tinker was decided incorrectly because it "substituted judicial oversight of the day-to-day affairs of public schools" for self-governance of public schools. Justice Thomas apparently believes that individual school districts should have the right to censor students' Constitutionally-protected speech. Yes, you know, Thomas, you're right: the Supreme Court definitely should not step in when a government entity is violating the Constitution, all in the name of self-rule. If he believes this, then why is he a member of the Supreme Court at all? Why does the Supreme Court exist, if individual government entitites have the right to apply their own, disparate, unconstitutional policies? Apparently, "the history of public education" matters more to him than the Constitution and the Fourteenth Amendment, the latter of which forces the federal Constitution to apply to the states. (Although Thomas, a student of the Scalia school of thought, undoubtedly places "Western tradition" above all else.)

Justice Thomas, once again, is a moron. Moving on.

Justice Alito reasons that the "material or physical disruption" component of Tinker is at work here, and suggests that "the threat to the physical safety of the students" is most important in this case, not the theory of delegation of parental authority. Apparently a student's possible advocacy of drug use "presents a grave and in many ways unique threat to the physical safety of students." Right, because as the Supreme Court has ruled many times before, advocating an idea is the same as putting that idea into practice. Oh, wait. Except that it's ruled the opposite of that.

Justice Alito is a moron. I hope he doesn't feel as though his physical safety is threatened by that statement. Justice Alito, please read Brandenburg v. Ohio the next time you're in the bathroom.

And Then There's Breyer. Justice Breyer, usually a staunch member of the liberal wing of the court, has decided to take The Yella Way Out, choosing instead to rule on the "merits" of the case. Strangely, after he says that the Court shouldn't discuss the merits, he proceeds to discuss the merits. Whaa?

Justice Stevens, writing the dissent, wonders whether or not "protecting children from the scourge of drugs supports a ban on all speech in the school environment that promotes drug use [...] is sensible as a matter of policy." After all, "carving out pro-drug speech for uniquely harsh treatment finds no support in our case law and is inimical to the values protected by the First Amendment." Stevens suggests that Frederick's message was not an explicit endorsement of drug use; rather, he calls it "an obscure message with a drug theme that a third party subjectively -- and not very reasonably -- thinks is tantamount to express advocacy." While he does not believe that the principal should be held liable for taking the banner down (which I agree with), he also does not believe that the argument about pro-drug speech is wise or relevant.

Stevens then gets to an interesting point:

Consider, too, that the school district's rule draws no distinction between alcohol and marijuana, but applies evenhandedly to all "substances that are illegal to minors." Given the tragic consequences of teenage alcohol consumption--drinking causes far more fatal accidents than the misuse of marijuana--the school district's interest in deterring teenage alcohol use is at least comparable to its interest in preventing marijuana use. Under the Court's reasoning, must the First Amendment give way whenever a school seeks to punish a student for any speech mentioning beer, or indeed anything else that might be deemed risky to teenagers? While I find it hard to believe the Court would support punishing Frederick for flying a "WINE SiPS 4 JESUS" banner--which could quite reasonably be construed either as a protected religious message or as a pro-alcohol message--the breathtaking sweep of its opinion suggests it would.

Where, then, does the school district's influence stop? This case suggests that even an obtusely pro-drug message, or possibly even a message that mentions something prohibited by school policy, could be considered an endorsement of that prohibited thing. After all, as Stevens writes above, "Bong Hits 4 Jesus" can have multiple meanings. Even Chief Justice Roberts calls it "cryptic" and suggests that it can have multiple meanings; Roberts even outright discounts Frederick's own interpretation of his own work. While this opinion is not earth-shattering, it nevertheless could be used to further restrict student speech in an undesirable way.

Posted by Mark at 12:03 PM | Permalink | Comments (0) | TrackBacks (0)

Tennessee has come a long way since the Scopes "monkey" trial. According to morons.org, the principal of Davy Crockett High School in Tennessee suspended student Curtis Walsh for participating in the annual National Day of Silence, "an annual nationwide student action in which students take a daylong vow of silence to illustrate the silence in which lesbian, bisexual, gay, and transgender people often suffer discrimination and violence." Today, ACLU's LGBT Staff Attorney sent a letter to the director of the Washington County School System, educating him about student free speech caselaw, encouraging him to get the school system's code of conduct up to speed with free speech jurisprudence (the school system currently prohibits students from engaging in "passive resistance"), and requesting that the principal apologize to Walsh and other students who were censored for exercising their constitutional rights (see Tinker v. Des Moines, 393 U.S. 503 [1969]).

In this case, the principal censored the students out of a fear of reprisal from other students. While those intentions appear to be good, a fear of violence is never a justification for prior restraint.

Posted by Mark at 2:11 PM | Permalink | Comments (0) | TrackBacks (0)

Remember last year, when several U.S. phone companies -- but not Qwest Communications -- willingly and voluntarily surrendered phone records to the U.S. government? The Electronic Frontier Foundation and the ACLU filed suit against the phone companies, most notably AT&T, which "built a secret room in its San Francisco switching station that funnels internet traffic data from AT&T Worldnet dialup customers and traffic from AT&T's massive internet backbone to the NSA," according to a former AT&T technician.

Things looked bad for the phone companies. They were probably in violation of 18 U.S.C. 2511 et seq., which prohibits phone companies from disclosing subscriber information unless compelled to do so by a court order (which, as far as we know, none of them had been given). Public opinion was against the phone companies and the Bush administration, the latter of which had assured us that he was only looking for terrorists.

Well, Verizon has gotten itself some smart lawyers. Or something. Last week, Verizon filed a motion to have the case thrown out on free speech grounds.

Yes, you heard that right. Free speech grounds. Verizon alleges that sending confidential subscriber information to the government in violation of 18 U.S.C. 2511 "is protected petitioning activity." They must have hired the RIAA's lawyers for this one.

Posted by Mark at 9:21 AM | Permalink | Comments (0) | TrackBacks (0)

In America's past, we've made a lot of free speech mistakes, and we shouldn't be proud of them. John Adams -- only our second president! -- signed the Alien and Sedition Acts during his tenure in office, for example. These acts were ostensibly designed to prevent "sedition" (a lovely euphemism that governments use for "people criticizing the government" which makes that most democratic of actions sound evil and sinister) but were, in fact, intended to silence his critics. People who publicly criticized Adams -- and there were many -- ended up in jail. Thankfully, Thomas Jefferson pardoned all of these people.

During both World Wars, the U.S. government cracked down on "sedition" again. After World War II, the spectre of communism caused the formation of the House Un-American Activities Committee, which investigated communist people and organizations. During the Vietnam War, the FBI infiltrated and surveilled anti-war organizations.

I thought we had moved on, but again, the Bush administration continues to surprise me with the depths to which it is willing to descend to (1) gain complete control of the government, (2) gain complete control of the world, (3) make tremendous amounts of money for itself and its friends, and (4) destroy those who would dare criticize it. This story from Boing Boing falls into category four:

Professor Walter F. Murphy, a Korean war hero and McCormick Professor of Jurisprudence (emeritus) at Princeton, was delayed while flying because he's on a "terrorist watch list." The check-in clerk told him that he was probably added because he gave a speech that was critical of the president (who dodged his military service).

According to the American Airlines representative to whom Murphy spoke, American citizens who have broken no laws are placed on terrorist watchlists for being in peace marches. That's right; if you protest the Iraq War, which is a war that is designed to fulfill categories (2) and (3) above, sometimes via category (1), then you get category (4).

This is not security. This is not "protecting the homeland." This is an abuse of power, plain and simple. Power abuses are always couched in the language of national security; cf. the Bush administration's reasons for not permitting Karl Rove and Harriet Miers to testify, under oath and on the record, in front of Congress. This president sickens me.

Posted by Mark at 10:53 AM | Permalink | Comments (0) | TrackBacks (0)

Boing Boing reports on two stories that underscore a victory for everyone.

This first is that the University of Nebraska sent a bill to the RIAA requesting that it, the RIAA, pay for the cost of finding out which students are file-sharing. The RIAA has, for the last several years, been sending notices to universities demanding that they help identify file-sharers. According to the article, the University of Wisconsin told the RIAA to get lost and said they would only turn over such records if compelled to do so by a subpoena. (This is the correct course of action, by the way. So far, the RIAA hasn't had a good track record in its quest to destroy people for downloading music, so it's in the institution's best interests to take the case to court, rather than continue to be the narc for the RIAA.)

The article brings up a good point: a university is in the business of educating students, not ratting them out. Most modern networks use DHCP, anyway, which dynamically assigns IP addresses for a specified amount of time, so determining someone's identity by IP address is useless unless you know exactly who had that IP address at the specified time. (Not to mention that there are other flaws with this system. For example, a file-sharer could have unknowingly connected to someone else's open wireless router and shared music that way. Even if the owner of the wireless router didn't do anything wrong, the Internet sees only one IP address and therefore it is assumed that the owner is the one doing the sharing.)

Anyway, if the RIAA wants a university to engage in hunting down students, that's fine -- as long as the RIAA compensates the university for the time spent "getting" students and not maintaining a network for the purpose of education. The university has nothing to fear from the RIAA, as the university isn't guilty of vicarious infringement, since it has no way of knowing who is sharing when. Miami University had firewalls and packet-inspecting devices in place not because they were concerned about infringement, but because they were concerned about (1) the huge amount of bandwidth used by Internet-connected filesharing; and (2) the security risks associated with using applications like Kazaa, Limewire, Morpheus, etc. (which spread viruses like wildfire at Miami).

Next story: a federal judge invalidated the Child Online Protection Act, another "save the children" piece of legislation that is designed to block children from viewing porn but ends up instead depriving consenting adults of access to (1) legal pornography that is their right to view; and (2) legal erotic material that has "substantial literary, artistic, political, or social value."

According to the article from CNN:

The law would have criminalized Web sites that allow children to access material deemed "harmful to minors" by "contemporary community standards." The sites would have been expected to require a credit card number or other proof of age. Penalties included a $50,000 fine and up to six months in prison.

Sexual health sites, the online magazine Salon.com and other Web sites backed by the American Civil Liberties Union challenged the law. They argued that the Child Online Protection Act was unconstitutionally vague and would have had a chilling effect on speech.

The U.S. Supreme Court upheld a temporary injunction in 2004 on grounds the law was likely to be struck down and was perhaps outdated.

While "contemporary community standards" is a phrase that is part of modern First Amendment jurisprudence, "harmful to minors" is not, and indeed is a very subjective and vague phrase. The major test for determining whether or not an action unduly impinges upon freedom of speech is to ask whether or not there exists a less invasive alternative -- either via statute or not -- that does the same thing. Turns out there's a thing called parents that is less invasive and does the same thing. For an administration that's all about less government, a law that revokes adults' rights in the name of protecting children seems a little contradictory.

Posted by Mark at 2:01 PM | Permalink | Comments (0) | TrackBacks (0)

SAN FRANCISCO -- Two days ago, a 75-foot section of Telegraph Hill (near North Beach) slid down the hill, requiring the demolition of six buildings nearby that were no longer structurally sound. That section of Telegraph Hill must have eroded.

Not unlike our civil liberties.

I've read no fewer than three stories online today that have made my blood turn cold.

From Boing Boing, the story of the Department of Homeland Security's attempts to mandate government-issued identification in order to board planes or enter federal courthouses. This is part of the REAL ID Act, a piece of legislation that was sneakily inserted into an omnibus spending bill last year. The Act creates federal requirements for state-issued identification -- including conglomerating the data into a national database -- effectively creating a national ID card.

Also from Boing Boing, apparently when you take pictures of the police, and they don't like it, they're allowed to slam you to the ground and threaten to use a Taser.

From CNet, the Bush administration is waving its flag of less government intrusion by engaging in ... more government intrusion! Under the traditional guise of "save the children," the administration wants to require websites that allow uploads of photos or videos to keep detailed records of who uploads the photos or videos, in case the police need to investigate illegal content. The administration also wants to allow the Attorney General to dictate national data retention policies and wants packet-switching devices designed with built-in backdoors for easier eavesdropping.

Posted by Mark at 5:01 PM | Permalink | Comments (0) | TrackBacks (0)

While I dearly love Boing Boing, the website is often guilty of mistakenly claiming that things are true when they are not. Two weeks ago, the website lamented the destruction of habeas corpus in the Military Commissions Act of 2006. While the legislation is terrible for our society, one of things it does not do is destroy habeas corpus rights. When websites claim certain things that turn out to be false, it looks bad for our side; people on the right are able to point to an instance of exaggeration, lying, or overreaction and say, "See! They don't even know what they're talking about!"

Today's instance deals with a bill "quietly signed" by George Bush, "allowing him to declare martial law." The bill was not "quietly signed" out of conspiracy; the bill is actually an omnibus defense-spending bill called the John Warner National Defense Authorization Act for Fiscal Year 2007. Most omnibus defense-spending bills contain earmarks, and this one is no different. Buried deep within the bill is a provision that, sure enough, allows the president to declare martial law.

But here's the problem: the president already had the authority to declare martial law. 10 U.S.C. 333 gives the president the authority to use the military to "take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy" as long as two conditions specified in §333(1) and 333(2) are met.

Boing Boing is wrong in that the bill does not give the president any new authority to declare martial law. What it does do is alter the conditions under which martial law may be declared. Prior to the signing of this bill, martial law could be declared if an

insurrection, domestic violence, unlawful combination, or conspiracy [...] so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or [such insurrection, domestic violence, etc.] opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.

§1076 of Title X of the bill allows the president to declare martial law in the additional instances of "a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident."

Posted by Mark at 6:40 PM | Permalink | Comments (0) | TrackBacks (0)

The San Francisco Chronicle today writes about a German company called Infineon that received a U.S. government contract to put RFID chips in US passports.

The RFID chip embedded in the back cover of the passport will, according to the State Department, "securely store the same data visually displayed on the photo page of the passport, and will additionally include a digital photograph." Additionally, "[t]he inclusion of the digital photograph will enable biometric comparison, through the use of facial recognition technology at international borders." This is why applicants are being asked not to smile in passport photographs: smiling confuses facial recognition software.

Contrary to what we've heard before, the Chronicle reports, the State Department will be using foil-lined covers to prevent unauthorized remote reading of the RFID chips. At least they're doing that.

But does this make us safer? "In a post-9/11 world," the institution of any security measures must cause us to ask, "Does this make us safer than we were before these new security measures?" Vis-a-vis RFID passports, the State Department seems to think so. "The idea is to make sure the person who is carrying the passport is the person to whom the passport was issued,'' State Department spokeswoman Janelle Hironimus told the Chronicle.

But is that really a problem? The attacks on Sept. 11, 2001 caused the State Department to re-think passports. Consider the following: all of the Sept. 11 hijackers had valid passports, issued to them by their government. They also had valid U.S. visas, issued legitimately by the U.S. government to them. Fake IDs were not the problem. Had we instituted an RFID passport system prior to Sept. 11, the attacks still would have happened, since the security failure was not the legitimacy of the hijackers' IDs.

Are we safer now that we have RFID passports? Definitely not. RFID passports are a boon for two groups of people: (1) people who want government contracts and (2) people who enjoy surveillance. For the first group, the motive is money. Infineon is certainly going to be paid a lot of money to manufacture RFID chips for passports. For the second group, the motive is access control. Imagine: the U.S. government takes photographs of a peaceful anti-Israel demonstration in London. The government picks up some faces and puts them into a database. When Johnny Protester from England tries to come into the United States, the digital copy of his face is compared with the database of undesirables, some of them legitimately terrorists, others just rabblerousers, others guilty of espousing opinions the government doesn't like. And guess what? Johnny Protester, demonstrating against something that the U.S. government is in favor of, isn't allowed entry into the country. He is never told why; indeed, he isn't allowed to know why. All he knows is that he is on a blacklist that he didn't know about, with no way of getting off the list, and is denied entry into the country.

It could even be that a picture of Johnny Protester at the rally was sent anonymously to the State Department by someone that doesn't like Johnny Protester, perhaps someone who espouses the opposite opinion as him. The State Department receives the picture, puts it in the database, and Johnny Protester is blacklisted from the United States by his enemies. (If you think this scenario is one of those crazy make-'em-ups, read this and skip to page 4.)

Hmmm. You know what? RFID passports are bad for security, but they're great for spying on people!

Posted by Mark at 10:49 AM | Permalink | Comments (0) | TrackBacks (0)

This is a friendly memo to all the parents out there, concerned with their children's well being. Fuck you. Quit trying to sanitize the internet, cable and every other media that transports the real world into your living rooms. Seriously. Stop it. Here is why this is asinine, pointless and counter-productive.

Let's say your kid walks down the street one day and sees a fight. Bam. Violence. With no chance to discuss it, no chance to think about it, just the kind of senseless, pointless and brutal shit that happens in the world every day. Sanitizing the internet, making every movie meet standards of decency and eliminating porn will NOT protect your children. It will coddle them and turn them into heartless little idiots who lack the ability to function for themselves. I ask you this, which sacrifice is greater: not doing drugs because there are none available, or not doing drugs because you CHOOSE not to?

These decency advocates are attempting to make the first scenario not a reality, but the reality. No violent video games means no violent video gamers right? Instead of studying what it is that allows people such as myself to separate a Looney Tunes cartoon from a "How to Hit People With Anvils and Do No Harm" instructional video we just turn every cartoon out there into Davey and Goliath. Seriously, don't even think of producing your own content and publishing it on YouTube, they're after that now too. And this just furthers my point. The internet (and this extends to cable, CD's and DVD's) are not IN your house in the normal sense. They bring the outside world in, and here is the kicker, you have to invite them. Thusly, the internet is available to everyone. It is not only for pre-teens, nor should it be. It is there for the free exchange of ideas, across the globe. So quit trying to pawn it off on your kids as a babysitter and wonder "How on earth did they discover so much scatological porn?"

I know it is hard to be a parent. Believe me I do. I've had a ton of experience with kids, through friends and *shudders* a terrible roomie. But the thing is, the world is out there. It will find your kids when you're not looking. So stop bringing it into your house then censoring it. Look, you want to buy a painting of a nude and put up some fig leaves, knock your damn self out. But do not ask me to look at the same censorship in Cleveland because your kid in Kansas might be offended if he sees a pair of breasts bouncing around. Talk to your kid. I know it's hard, but do it. You know what, I can't tell you why it is I've never done drugs. I grew up with a lot of people who did. I've gone against a lot of what my parents told me to do. But I've been offered and turned down pot. I just didn't want to do it. And no amount of, "C'mon man this stuff is great" or other peer pressure BS could change my mind. Neither could internet cartoons, webcomics, movies, TV shows or CD's extolling the virtue of pot. So try, you know, parenting. Or have a single computer with internet access, in a central location in your house. If you catch your kid looking at something you don't want them to, explain to them why they shouldn't.

Tell your kids the difference between Looney Tunes and the real world, between Chamillionaire and the real world, hell, between the Real World and the real world. Trust me, it'll be well worth your time. I hope your kid doesn't have to see someone die while they're that young, but I know a lot of people who lost relatives, including siblings during childhood. That is the real trick with life, it comes to you. Sometimes you can't control how (sickness, death, divorce) and sometimes you can (the internet, cable, music). I will never, ever ask you to watch The Boondock Saints, listen to Nothingface or look at some of the trash that comes through the Foobies link on Fark.com. Really, I won't. So don't tell me that I can't look at it just because your kid might see it and be scarred. You don't want the real world in your house? Fine. Go Amish. But be warned, real life will find your kid. With or without your supervision.

Posted by Wolf at 12:06 PM | Permalink | Comments (0) | TrackBacks (0)

Last week, security expert Bruce Schneier wrote a column for Wired in which he answered the famous defense of spying: "If you're not doing anything illegal, then you shouldn't be worred." This is almost exactly verbatim what my Spanish host mother said about living in Franco's Spain. Isabel actually didn't mind the Franco regime, partially because she was a white, middle-class Catholic wife and daughter who wasn't stirring anything up. Her motto: "Si no te metías con nadie, nada pasó" (If you didn't [mess with] anyone, nothing happened to you). When polling indicates that 63% of Americans agree with warrantless, illegal, poorly-justified wiretapping, something's wrong. Isabel is a great woman, but she doesn't understand one of the fundamental rights that come with living in a democratic society: we shouldn't have to justify our actions to our government. We shouldn't have to explain to FBI agents why our phone conversation isn't subversive. A lot of people, I believe, don't understand this. Schneier sets them straight:

Cardinal Richelieu understood the value of surveillance when he famously said, "If one would give me six lines written by the hand of the most honest man, I would find something in them to have him hanged." Watch someone long enough, and you'll find something to arrest -- or just blackmail -- with. Privacy is important because without it, surveillance information will be abused: to peep, to sell to marketers and to spy on political enemies -- whoever they happen to be at the time.

Privacy protects us from abuses by those in power, even if we're doing nothing wrong at the time of surveillance.

We do nothing wrong when we make love or go to the bathroom. We are not deliberately hiding anything when we seek out private places for reflection or conversation. We keep private journals, sing in the privacy of the shower, and write letters to secret lovers and then burn them. Privacy is a basic human need.

Posted by Mark at 3:09 PM | Permalink | Comments (0) | TrackBacks (0)

Yesterday, Gen. Michael Hayden, currently head of the National Security Agency and President Bush's nominee to head the CIA, talked with members of of the House and Senate Intelligence Committees on topics related to his nomination. One of the topics, reports McNews, was the legality of the NSA's warrantless wiretapping program, both foreign and domestic:

Air Force Gen. Michael Hayden told the Senate Intelligence Committee that the National Security Agency (NSA) eavesdrops without warrants only on the phone calls or e-mails of terrorism suspects. He said officials use a "probable cause" standard that makes it unlikely that ordinary Americans would be targeted.

Wrong! "Probable cause" only applies in a court of law -- which the administration did not go to in order to get the warrants required to wiretap. Federal judges are supposed to be making the determination as to what is or is not "probable cause," but in the case of the NSA wiretapping program, FBI officials -- who have no authority to do such things -- are making those determinations.

At the risk of being redundant, I will continue to repeat myself. 50 U.S.C. 1801 et seq. is quite clear about warrants: It requires officials to obtain a warrant before engaging in foreign intelligence surveillance in this country. The Bush Administration has, by its own acknowledgments, engaged in foreign intelligence surveillance without obtaining the necessary warrants. I think we can all agree that the means that the Bush Administration has broken the law.

As to domestic surveillance and NSA's collusion with AT&T, the Fourth Amendment -- which, last I heard, was still in force -- requires that a warrant be issued upon probable cause in order to engage in search and/or seizure. A warrant can only be issued by a judge, and to the knowledge of the American people, no judges were consulted when the NSA decided it wanted to invade the privacy of "United States persons," something that is prohibited under the Foreign Intelligence Surveillance Act. There is no alternate Fourth Amendment for use in times of war; there is no crazy provision that gives the president brand-new powers during a time of war. The Constitution is the Constitution in war or peace, and regardless of the current climate of the country or whether or not we're living in "a post-9/11 world," civil liberties remain the same. This means that the government cannot engage in "search and seizure" without a warrant issued by a judge. The Bush Administration did not get warrants from judges; therefore, it has broken the law again.

Furthermore, 47 U.S.C 22 prohibits a "common carrier" (a telephone company, in this case) from disclosing consumer information "except as required by law." When does law require the disclosure of consumer information? For that, we have to visit 47 U.S.C. 1007, which requires the disclosure when "alternative technologies or capabilities or the facilities of another carrier are not reasonably available to law enforcement for implementing the interception of communications or access to call-identifying information." First of all, the Bush administration never went to a court, so its domestic wiretapping program is illegal on its face in that regard. Second, any reasonable court would find that there are extant alternatives to asking the phone company for the information, and as such, the phone company would not be required to disclose customer information. Thus, AT&T has also broken the law by providing information to the government without a court order.

How Gen. Hayden can say -- in front of Congress and under oath -- that the program is "legal" is something that baffles me beyond comprehension. What's more baffling is that he will not be punished and the administration will not be punished, since the Congress is Republican-controlled and will not allow censures or impeachment or even hearings under oath about this or any other issue that may cast the administration in a bad light. Why's that? Because they value their jobs: if they vote in favor of anything that could harm the administration, Karl Rove will have a puppet candidate up for election in their home district and dirty rumors spread about them faster than you can say, "John McCain adopted a black baby."

Posted by Mark at 2:14 PM | Permalink | Comments (1) | TrackBacks (0)

Guess what? The NSA's illegal, poorly-justified, warrantless wiretapping of international calls turns out not to have been confined to a few people, and it hasn't been confined to international calls. USA Today, of all places, broke the story on Thursday that the NSA maintains a database of "tens of millions" of phone calls. Not only that, but this database consists of calls from one "United States person" to another "United States person," as defined by the FISA Act of 1978.

If you thought the first NSA wiretap thing was legally murky, then let's see how murky this new one is.

50 U.S.C. 1801 et seq. makes reference to "trap and trace" and "pen register" devices. A "trap and trace" device is used to determine who the parties to the call are. A "pen register" is used to determine what numbers have been dialed. Both of these devices can be used for spying, and both require a court order in order for them to be used in foreign intelligence surveillance. In this case, however -- and did we think this would ever happen? -- neither device had to be employed, since the phone companies in question willingly surrendered the information to the NSA. So the issue becomes: is it still legal if the phone company gives the information willingly? No spying devices were employed; the NSA had to do nothing; is it still illegal?

If it were the NSA actively doing the snooping, then it might be illegal. First, no warrant -- that we know of -- was issued to the FISA court. Second, Congress has never declared war, and this program has been going on for more than fifteen days, so the "emergency" provisions of FISA don't apply, here. Third, in warrant applications, the Attorney General must certify that it is unlikely that a "United States person" will be a party to any electronic surveillance. In the current NSA debacle, United States persons are the only ones under surveillance.

But again, the NSA wasn't forcing AT&T and Verizon to hand over information. In fact, Qwest Communications appears to be the only company that refused to comply with the NSA's request for information. I guess it's too bad that they provide crappy service, otherwise I'd switch to them, since they seem to care about civil liberties.

The Constitution has few protections against a corporation invading a person's privacy or taking away civil liberties. The Founding Fathers didn't have such corporations in 1789; they thought that the primary threat to liberty would come from the government. Turns out they didn't anticipate the power of the corporation. As such, it is illegal for the government to inpinge upon your freedoms, but it's not necessarily illegal for a corporation that has as much power as the government to do the same.

18 U.S.C. 2702 prohibits carriers from divulging consumer information except in a few instances, and none of the instances adequately describes the current NSA data-mining operation. However, 18 U.S.C. 2709 requires carriers to comply with FBI requests for "toll" information, which is information about who placed the call, to whom the call was placed, what time the call was placed, and how long the call lasted. This is the information that the NSA has obtained; however, 18 U.S.C. 2709 says that only the FBI is authorized to receive this information, and this information must be "relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely on the basis of activities protected by the first amendment to the Constitution of the United States." This program could be illegal in that the NSA is not authorized to receive this information, and it is hardly justifiable that the toll records of tens of millions of Americans are all "relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities."

Posted by Mark at 10:31 PM | Permalink | Comments (0) | TrackBacks (0)

While Google is attempting to fight government interference in its business by refusing to give in to government subpoenas for its search results, other companies are bowing readily to the government. One of these companies is AT&T.

Wired magazine reports:

AT&T built a secret room in its San Francisco switching station that funnels internet traffic data from AT&T Worldnet dialup customers and traffic from AT&T's massive internet backbone to the NSA, according to a statement from [former AT&T technician Mark] Klein.

Wired magazine also reports that the company, Narus, that manufactures the NSA's data-mining software boasts that "ts equipment can scan billions of bits of internet traffic per second, including analyzing the contents of e-mails and e-mail attachments and even allowing playback of internet phone calls."

Klein, an AT&T technician for 22 years, leaked confidential AT&T documents to the Electronic Frontier Foundation last week, causing EFF to file a lawsuit against AT&T for violating state and federal law by voluntarily aiding the NSA in its illegal, poorly justified, warrantless wiretapping program. (For more information, please read EFF's amended complaint against AT&T.)

Things get troubling here because customers have no say in whether or not AT&T transmits their personal data to the NSA. Also troubling is the fact that, after many mergers and acquisitions (most recently in November by SBC), AT&T is on its way to becoming a telecommunications monopoly ... again! In 1984, the government broke up the subsidiary Bell operating companies of AT&T, creating a variety of smaller companies: Lucent, Verizon, Sprint, MCI, and so on. Now, the companies are buying each other, creating a monopoly again. At what point will you no longer be able to obtain telephone service from any company but AT&T, with the knowledge that AT&T can and will give up personal information about you? It's not like you would be able to choose a phone company that didn't narc on you; there would be no "other" phone companies!

Pro-business Republicans, do you see why monopolies are bad for civil liberties?

Posted by Mark at 1:02 PM | Permalink | Comments (0) | TrackBacks (0)

By Richard D. Erlich

To outrun my data a bit -- the supporters of Intelligent Design (ID) are operating in bad faith, and so are most of the Darwinists opposing them.

ID is an inelegant theory in the same way all theories of "demiurges," local creators, are inelegant: they all invite the question, "But who created the local creator?" And that gets you either into an infinite regress of creators or back to God, the source and ground of Being, with no question of who created God. (Unless we humans did by making up gods and God, but that is a different issue.)

Creationism, on the other hand, is for theists a very elegant theory: The universe is as it is because that's how God created it, right down to every last organism, organ, and organelle like a bacterial flagellum.

The only reason, then, to prefer ID to Creationism is that ID doesn't raise quite so obvious First Amendment issues. So, I'll assert again, more carefully this time, that those who push ID are probably Creationists acting in bad faith.

Darwinist bad faith comes in two forms. The first is when people say that only Neo-Darwinist theory should be taught because that's what one should teach in science classes. This is sometimes followed by the rhetorical question, "Would you teach flat-Earth theory?"

That rhetorical question should be answered, and the answer should be "Damn straight, I would: flat-Earth theory is a good place to introduce people to real science."

If science has historically been grounded in empiricism, why did educated people in the past -- and why should anyone nowadays -- reject the sense evidence that the Earth may be lumpy but basically is flat? Going further, why reject the obvious point that the Earth is the center of the universe, with the sun, moon, and stars revolving around us?

Why aside from "Teacher says" should we go over to some theory of a roundish Earth revolving around the sun in an elliptical orbit, with the sun itself just a star among billions in a galaxy among billions? Certainly not on the basis of my senses!

Flat-Earth theory is a good place to teach the history of science and the method of science: how and why (logically as well as historically) one paradigm gets replaced by another.

Studying and continuing the debate over the origin of species is an excellent way to teach science, including testing a Creationist hypothesis against Neo-Darwinism and seeing which one more elegantly explains the data.

Creationism is highly elegant, except that it requires the huge assumption of the existence of God and soon gets into some problems if that God directly and personally designed, say, the ichneumon wasp, which is like the Alien from Alien on a small scale. Can Neo-Darwinism usefully organize a mass of data within the usual scientific limits of natural explanations? Can it do so without getting us into the Problem of Evil?

Scientists and science teachers can make a good argument for Darwin and should be willing to argue, not insist that their students accept "scientific" views on the basis of authority.

But there is another area of scientific bad faith.

Why should there be any argument for Creationism if naturalistic explanations explain things quite nicely, thank you, without "the God hypothesis"?

The answer to that question includes the fact that eliminating the God hypothesis and accepting a rigorous materialism leaves human beings in awkward positions: a species that arose by chance and will die out, on the edge of an unremarkable galaxy, in a universe that is itself probably doomed to extinction, a species without particular purpose or special value, one that must muddle our own way to rules of behavior.

Such issues, we're often told, are for philosophy, anthropology, and/or theology classes, not science classes. Uh-huh, right: like US public high school students will get serious classes in philosophy or theology! As a practical matter, science classes generally and Darwinist biology classes more particularly eliminate the need for a God hypothesis without helping students work through the implications of that threat to religious belief.

That's bad faith and ethically irresponsible. Or it assumes, arrogantly, if mostly correctly, that few students learn enough, or care enough about what they learn in school to have their belief system challenged at all. (Note the expression "cram and regurgitate" for preparing for exams: once "regurgitated," that education poison is out of one's system and won't be a bother.)

Actually teaching scientific method and the history of science, and using an anthropological approach to look at competing creation myths, might make the little punks care. In any event, acting in good faith is an ethical responsibility for teachers.

Kids are pretty resilient, and older teens can handle logic, if forced to. Let's give them some serious controversies to study.

Richard D. Erlich is a professor in English at Miami University, Oxford, Ohio; his undergraduate education stressed the life sciences.

Posted by Mark at 4:15 PM | Permalink | Comments (5) | TrackBacks (0)

Remember John Gilmore? He's the co-founder of the Electronic Frontier Foundation and tech millionaire who sued the federal government for its secret law requiring airline passengers to present government-issued photo identification. The Ninth Circuit Court of Appeals in San Francisco released its opinion in the case.

Man, if anyone accused the Ninth Circuit Court of being a liberal, activist bastion, that person needs to be slapped a lot. The Ninth Circuit Court upheld the government's secret law.

In its unanimous opinion in Gilmore v. Gonzales, 04-15736 (formerly Gilmore v. Ashcroft), a three-judge panel agreed that the secret law was legal. After addressing prosaic issues of jurisdiction (the Ninth Circuit ruled that it did have jurisdiction to hear the case), the court next addressed issues of standing. Gilmore objected not only to the secret identification law, but also to requiring extensive searches in order to board the plane. He also suggested that, in the abstract, his ability to travel was hampered not only by airlines, but also train and bus companies, who also require identification. The Justice Department argued that since Gilmore refused to submit to a search, and did not actually attempt to travel by bus or train, he did not suffer "injury in fact" in those instances. The Ninth Circuit agreed, saying that Gilmore had standing to challenge only the identification requirement and only as it pertains to airlines.

The Ninth Circuit suggested that it didn't matter whether or not the text of the law was secret; he was still informed of its existence:

He alleged that several airline personnel asked him for identification and informed him of the identification policy. They told him that in order to board the aircraft, he must either present identification or be subject to a “selectee" search. He also saw a sign in front of United Airlines’ ticketing counter that read “PASSENGERS MUST PRESENT IDENTIFICATION UPON INITIAL CHECK-IN.” Although Gilmore was not given the text of the identification policy due to the Security Directive’s classification as SSI, he was nonetheless accorded adequate notice given that he was informed of the policy and how to comply.

The court cites a 2000 case called Forbes v. Napolitano as support for this opinion. In that case, the Ninth Circuit ruled that people do not need to be able to read the actual statute; rather, they need only "be given a reasonable opportunity to discern whether their conduct is proscribed so they can choose whether or not to comply with the law." Thus, the combination of verbal statements and signs, in the opinion of the court, is "reasonable opportunity" to indicate that he must present identification. Never mind the fact that the airline employees or signs could be lying about the statute; also, the signs do not indicate that whether or not it is a government statute or an airline policy that is being enforced. The Ninth Circuit's opinion essentially says that individuals do not have a right to read the text of the law; they need only be given the assurance that the law exists and be offered enough information about the unlawful activities so that they can decide whether or not to comply with the law. "Trust us, the law says X." Trust you? Trust you? As a citizen, it is my right to read the law in its entirety! Not to read a synopsis of the law, or the Readers Digest condensed version, or even to rely on someone's assurance that the law says X. The Ninth Circuit has made a big mistake, here.

The court next tossed out Gilmore's assertion that he has a "constitutional right to travel" and the Justice Department's identification requirement, by infringing upon his ability to travel by commercial airline, infringes upon his right to travel. This was the correct thing to do, as "the Constitution does not guarantee the right to travel by any particular form of transportation." The court is also correct that "it does not follow that Defendants violated his right to travel, given that other forms of travel remain possible." That was a silly assertion for Gilmore to make in the first place.

While the court denies the existence of a "constitutional right to travel" it acknowledges the existence of a "right to interstate travel" as established in the 1999 Ninth Circuit case Miller v. Reed. There, the court ruled that denying a person a drivers license -- thus denying a person one form of interstate travel -- does not deny a person all forms of interstate travel.

The court was also correct in criticizing Gilmore's assertion that a "harsh penalty" is imposed upon people who do not present identification. There is no stautory penalty; rather, the person is simply not permitted to board the airplane. The person is free to leave the airport, and the person is not arrested. The inability to board an airplane is not a "harsh penalty."

What is most detrimental here is the court's assertion that secret laws are okay and requiring identification as a prerequisite for travel is okay. The court also missed the boat on the larger issue of requiring a government-issued identification -- which costs money -- in order to travel. This does not comport with the Fourteenth Amendment's "equal protection" clause, as it penalizes those who cannot afford government-issued IDs. If Gilmore were smarter, he would have gone to a bus station and a train station to demonstrate that several modes of interstate transportation are impeded by a lack of identification, thus severely impeding a person's "right to interstate travel." Also, IDs are required for many government services outside of travel. Due process is also denied here, as U.S. citizens should not be required to pay for identification that they need to access vital services. In other countries, IDs are free because they are so necessary.

Thus, it appears that the government may enforce laws that citizens are not allowed to the text of or even the existence of, as long as adequate display is made of some of the parts of the law. A Readers Digest condensed version of the law is okay.

This is not okay. It is not good for a democracy to permit the enforcement of laws that citizens are not allowed to read. "Don't worry, we'll tell you what the law says." No, I am going to worry. I don't want a government that isn't interested in protecting my rights telling me what the law is without allowing me see it! It's a hearkening back to the days of the Catholic Church, when the Bible wasn't available to the masses, and people were expected to trust the priest's interpretation of the Bible. Once the printing press allowed people to read it for themselves, guess what? There was a lot of disagreement about the interpretation. They were dealing with heaven and hell; now, we're only dealing with earthly law, so we should have no less a standard.

Posted by Mark at 12:00 PM | Permalink | Comments (0) | TrackBacks (0)

In a speech at Georgetown University yesterday, Attorney General Alberto Gonzales again attempted to justify the Bush administration's warrantless wiretapping program. Here's a breakdown of how he does it, and why he's wrong.

I. "It's always been done"

Gonzales' first support for warrantless wiretapping is "it's always been done":

It has long been recognized that the President’s constitutional powers include the authority to conduct warrantless surveillance aimed at detecting and preventing armed attacks on the United States. Presidents have uniformly relied on their inherent power to gather foreign intelligence for reasons both diplomatic and military, and the federal courts have consistently upheld this longstanding practice.

The problem with this statement is that federal courts have not "consistently upheld" warrantless surveillance. David Greenberg, a professor at Rutgers University and a Slate columnist, wrote in an Oct. 11, 2001 column that "the journalist David Wise noted in his 1976 book The American Police State -- a book far more measured than its title suggests -- the constitutionality of wiretapping and bugging (which are not the same thing) has always been murky." An examination into the history of federal wiretapping reveals that courts have not been clear and consistent in their rulings about the legality of warrantless wiretapping.

Federal courts have ruled on the issue of warrantless wiretapping and then overruled themselves a few years later. The final report of the Church Committee, which investigated intelligence abuses during the Vietnam War era (and the recommendations of which later became the Foreign Intelligence Surveillance Act of 1978, a.k.a. 50 U.S.C. 1801, et seq.), reflected a similar opinion. In 1967, the Supreme Court, in Katz v. United States, 389 U.S. 347, ruled that "the Fourth Amendment's warrant requirement did not apply to electronic surveillances." Six years later, the Court reversed itself. In United States v. United States District Court, 407 U.S. 297 (1972), the Supreme Court ruled that "the constitutional power of the President did not extend to authorizing warrantless electronic surveillance in cases involving threats to the 'domestic security.'" Prior to FISA, there was no standard or regulation for electronic surveillance, and "executive branch officials developed broad and ill-defined standards for the use of warrantless electronic surveillance," according to the Church Commitee report.

II. The president has the power to conduct warrantless electronic surveillance

Gonzales' second justification for warrantless wiretapping is that Congress, in its Oct. 2001 Authorization for the Use of Military Force, implicitly allowed the president to conduct such wiretapping:

The Resolution means that the President’s authority to use military force against those terrorist groups is at its maximum because he is acting with the express authorization of Congress. Thus, were we to employ the three-part framework of Justice Jackson’s concurring opinion in the Youngstown Steel Seizure case, the President’s authority falls within Category One, and is at its highest. He is acting “pursuant to an express or implied authorization of Congress,” and the President’s authority “includes all that he possesses in his own right [under the Constitution] plus all that Congress can” confer on him.

The "Youngstown Steel Seizure case" is Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). In 1952, when a nationwide steel workers' strike was looming, the president seized control of U.S. steel mills in the name of national security. Guess what? The Supreme Court actually ruled that the president did not -- did you get that? -- did not have the authority to seize private steel mills, as, (1) "There is no statute which expressly or impliedly authorizes the President to take possession of this property as he did here," and (2) "Authority of the President to issue such an order in the circumstances of this case cannot be implied from the aggregate of his powers under Article II of the Constitution." Oh, and did I mention the third justification? "In its consideration of the Taft-Hartley Act in 1947, Congress refused to authorize governmental seizures of property as a method of preventing work stoppages and settling labor disputes."

Yes, that's right: in 1952 the Supreme Court concluded that the president could not seize U.S. steel mills -- even in the name of national security -- because he had no constitutional authority to do so, either express or implied, and Congress had already supplied a way to deal with the strike in the form of the Taft-Hartley Act.

Now, let's apply this case to the current situation. We have an instance in which the president is (1) given no stautory authority to conduct warrantless electronic surveillance; (2) the president is given no Constitutional authority to conduct such surveillance; and (3) there is already a statutory solution to the problem, in the form of the Federal Intelligence Surveillance Act of 1978. Using Alberto Gonzales' own example, we find that the example actually supports the opposite of Gonzales' opinion. Gonzales is quoting Justice Jackson's concurring opinion, not the Court's majority opinion. But even Justice Jackson's opinion goes against Gonzales' rationale!

Justice Jackson, in his concurring opinion, articulated three situations in which the president's and Congress' authority might be at odds. The first situation -- quoted by Gonzales -- is when the president "acts pursuant to an express or implied authorization of Congress." This is when, as Gonzales says (quoting Jackson's opinion), "his authority is at its maximum." But -- and perhaps Gonzales fell asleep before he got to this part of the opinion -- Jackson discounts President Truman's steel seizure as falling within the scope of Category One, "for it is conceded that no congressional authorization exists for this seizure." In Category Two, "the President acts in absence of either a congressional grant or denial of authority," and as a result, authority is uncertain, for the president and Congress may both have authority. In Category Three, "the President takes measures incompatible with the expressed or implied will of Congress." It is in this category that presidential power "is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system."

Again, Gonzales supports the opposite of his own opinion with his own example. President Bush suggests that his power is exclusive in this matter, which places this action in Category Three. Justice Jackson would actually disagree with Gonzales on this issue.

Nice try, Alberto. But not good enough. Some people actually read the court cases.

III. We need this to fight the War on Terr'

Gonzales' third justification is that warrantless surveillance is necessary for conducting the War on Terr' and the Supreme Court has affirmed that (sort of):

In [the Hamdi] case, the Supreme Court confirmed that the expansive language of the Resolution -- “all necessary and appropriate force” -- ensures that the congressional authorization extends to traditional incidents of waging war. And, just like the detention of enemy combatants approved in Hamdi, the use of communications intelligence to prevent enemy attacks is a fundamental and well-accepted incident of military force.

Unfortunately, Congress disagrees. The bipartisan Congressional Research Service released a 44-page memorandum [PDF] earlier this month, analyzing what it could of the president's warrantless wiretapping program. The conclusion of the Congressional Research Service is that most of the issues are murky. Legislation could be read in multiple ways; there is no clear distinction as to what is legal and what is not -- at least, it is not nearly as clear as Alberto Gonzales would have you believe it is. With the caveat that it doesn't know everything about the wiretapping program, since it is technically confidential, the Congressional Research Service concludes:

From the foregoing analysis, it appears unlikely that a court would hold that Congress has expressly or impliedly authorized the NSA electronic surveillance operations here under discussion, and it would likewise appear that, to the extent that those surveillances fall within the definition of “electronic surveillance” within the meaning of FISA or any activity regulated under Title III, Congress intended to cover the entire field with these statutes.

[...]

While courts have generally accepted that the President has the power to conduct domestic electronic surveillance within the United States inside the constraints of the Fourth Amendment, no court has held squarely that the Constitution disables the Congress from endeavoring to set limits on that power. To the contrary, the Supreme Court has stated that Congress does indeed have power to regulate domestic surveillance, and has not ruled on the extent to which Congress can act with respect to electronic surveillance to collect foreign intelligence information. Given such uncertainty, the Administration’s legal justification, as presented in the summary analysis from the Office of Legislative Affairs, does not seem to be as well-grounded as the tenor of that letter suggests.

If Alberto Gonzales submitted this in a law school class, he'd get a "D." No professor would accept these reasons as grounds for warrantless electronic surveillance, so why should the American people?

Posted by Mark at 2:25 PM | Permalink | Comments (1) | TrackBacks (0)

News surfaced today that the Bush administration, in its misguided War on Porn, asked a federal judge to force Google to comply with a subpoena requesting a "random sampling" of 1 million search queries submitted over the course of a week.

The Bush administration claims that the information will be used to see how often users search for pornography. Unsurprisingly, Microsoft, AOL, and Yahoo readily complied with similar subpoenas. Only Google went to court to challenge its subpoena.

The Justice Department is trying to defend 1998's Child Online Protection Act [PDF]. The act was challenged by the ACLU in Pennsylvania in 2000. The Third Circuit Court ruled in favor of the ACLU. COPA prohibits web publishers from allowing minors access to obscene material, but the Supreme Court -- which heard the case in May, 2002 (Ashcroft v. ACLU, 535 U.S. 564) -- sent the case back to the Third Circuit Court for further review. The obscenity standard takes into account "contemporary community standards" in determining what is obscene, but what is such a standard on the Internet? The Supremes didn't answer the question of whether or not COPA was overbroad; rather, they sent the case back to determine "whether COPA suffers from substantial overbreadth for reasons other than its use of community standards, whether the statute is unconstitutionally vague, or whether the statute survives strict scrutiny." The disputed section of COPA is known to history as 47 U.S.C. 231.

The Bush administration argues that COPA is "more effective than filtering software in protecting minors from exposure to harmful materials on the Internet." CNet reports, "Records from search logs would help to understand the behavior of Web users and estimate how frequently they encounter pornography, the motion says. For instance, Internet addresses obtained from the search engines could be tested against filtering programs to evaluate their effectiveness."

Posted by Mark at 1:06 PM | Permalink | Comments (0) | TrackBacks (0)

One method that intelligent design advocates use to weaken the case for evolution is to suggest that science itself is a religion, and anyone who refuses to examine critiques to evolution is just as dogmatic as anyone who refuses to examine critiques to religion. The underlying assumptions of this argument are based on either an ignorant misunderstanding of science or a malicious misrepresentation of it.

Syndicated columnist Paul Campos, appearing in the Dec. 29 issue of the Lake County News-Herald, makes the claim that science is just as based in faith as religion is. "A sure sign that a belief system has triumphed over its opponents is that it stops thinking of itself as a belief system at all. Instead it becomes 'what every rational person knows to be the case,' or 'simple common sense,' or, more concisely still, 'the truth.'" Campos' suggestion in this opening paragraph is that scientists belief that they are espousing "the truth." As any scientist knows, this statement is a straw man that is patently false. No scientist would ever claim that he or she is espousing "the truth." Only non-scientists would assume that scientists think this. A scientist creates a conclusion based upon the observed data.

Campos misunderstands science and religion. As I have written before in this space, science and religion operate on two mutually exclusive epistemological systems. Science operates on reason, the eighteenth-century epistemology which holds that "truth" is anything that can be empirically proven and supported by logic. What is "true" in the reason system is what can be comprehended by the senses and the mind.

Religion operates on faith, which is necessarily the opposite of reason. Faith precludes the existence of empirical data to support a claim, and in order for a person to believe in a religion, that person must believe in it despite the lack of empirical data. Faith and reason are two different epistemological systems, and it is disingenuous at best to try and evaluate a field of study that uses one system in terms of the other system.

In other words: religion cannot be supported by science, because religion precludes the existence of observable data. You must believe in a religion even though there are no observable data. Likewise, science cannot be proven by faith because its system of epistemology assumes that a dearth of observable data means that a claim is not true.

To use a cliché, you can't compare apples and oranges, which is what intelligent design advocates would like to do. And, by the way, it is only intelligent design advocates who are framing the debate this way. No scientist is suggesting that religion is wrong because it is based in supernatural, unprovable (through reason) evidence. Scientists understand their system better than that and they know that religion is unprovable through a scientific study. And scientists are secure enough in their own epistemology that they don't have to attack other epistemologies.

The problem here is that the official epistemology of the U.S. government is reason, not faith. I refer you to the First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Using faith as an epistemological system is the same as respecting an establishment of religion; indeed, it is respecting religion itself, since using faith as an epistemology would mean that Congress supports religion's method of understanding the universe.

As such, Congress cannot endorse intelligent design, which is not only unscientific, but as Judge Jones of the U.S. District Court for the Middle District of Pennsylvania notes, "intelligent design" is another way for creationists to get their religious, faith-based theory into a public school, where the official epistemology is reason and the official method of understanding the universe is science.

And while Paul Campos does not misrepresent the definition of a "theory," plenty of other intelligent design advocates do. It is a popular practice to claim that scientists claim that a "theory" is a universal truth, when in fact (according to the much more astute ID advocates) they are misrepresenting themselves, and a "theory" is actually not a universal truth. Again, this is the very definition of a straw man. No scientist would ever claim that a "theory" is an absolute truth. A theory means only that the conclusions of the theory have been repeatedly supported by empirical data. It is true that evolution is "just a theory," but this is not a pejorative statement; rather, it means that conclusions of the theory of evolution have been repeatedly supported by empirical data.

Intelligent design is not a theory; indeed, it has no place anywhere in the nomenclature of science because it is not science. Intelligent design predicates itself on an explanation of the unknowable. Its primary tenet is that biological life-forms are so complex that they could not have been formed by so random a process as evolution. There must, therefore, have been a "designer," an anthropomorphic entity who consciously created biological life.

There are four problems with this notion, in terms of a scientific theory. One, it is based on the logical fallacy called "argument from ignorance" (also "argument by lack of imagination") in which an idea is necessarily wrong because the arguer can't explain it or because it hasn’t been proven to the arguer's satisfaction. The fact that natural selection seems far-fetched to some people does not automatically discount it as impossible.

The second problem with "intelligent design" is that it doesn't predict anything. It is a "negative" theory in the sense that it disproves a competing theory but does not advance any new conclusions of its own beyond the existence of a "designer." A theory must be able to predict what will happen under similar circumstances. Dmitri Mendeleev, for example, theorized that elements with similar atomic weights would have similar properties, and using this theory, he correctly predicted the properties of germanium, gallium, and scandium based on the properties of silicon, aluminum, and boron. Without the ability to predict the future, a theory is useless.

The third problem with "intelligent design" is that it cannot be disproved. Karl Popper, an Austrian philosopher, famously said that theories could be falsified or disproved. If you can't disprove it, then it's not a theory. "Intelligent design" cannot be disproved using reason; there is no way to disprove the notion that a supernatural force consciously created biological life. Again, science precludes the existence of the supernatural or the use of the supernatural as an explanation for natural phenomena.

The fourth problem with "intelligent design" is that it does not attempt to explain who the designer is. Ostensibly, since intelligent design is an evangelical Protestant movement, the designer is the Christian God, but since intelligent design is asymptotic to religion, it doesn't mention specifically who the designer is.

But the point of ID is not to forward anything resembling a scientific theory. ID proponents know that it is not a scientific theory. ID is a public relations initiative designed to sow doubt in the minds of those who are not entirely convinced of evolution or who believe that the United States has entered an age that is too secular. The Discovery Institute's notorious Wedge Document makes quite clear that the purpose of ID is not to advance a competing scientific theory to natural selection, but rather to "function as a 'wedge' that, while relatively small, can split the trunk when applied at its weakest points." The "wedge" in this case is intelligent design, and the "trunk" is "scientific materialism." The ultimate goal of the Discovery Institute is not to advance the cause of science but to "defeat materialism," which it sees as a "devastating" force. Its first tactic is to defeat "scientific materialism," which is the epistemology of reason over faith, science over religion. Once it can make Americans doubt science, they will begin to doubt reason and soon return to faith as their preferred epistemological system, with religion as their way of understanding the universe.

Scientists are not threatened by religion. They feel that religion and science can co-exist because they occupy two different spheres of knowledge. They know that they are not asserting absolute knowledge, just knowledge within their sphere. It just so happens that science is the official method of knowledge of the United States government.

Intelligent design is not, and should not regarded as, anything resembling a scientific theory. Do not be fooled: it is a marketing technique that is part of a larger reaction to American secularism and an attempt to return the United States to what it sees as the "good old days" of religion and an epistemology grounded in faith.

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Boing Boing reports that the Oakland Tribune in Oakland, Calif., dismayed over the government's gross abuses of civil liberties, is collecting new or used copies of George Orwell's Nineteen Eighty-Four. When the paper has collected 537 copies, it will send them to every U.S. senator and representative, as well as the president and vice president. Send your used or new copy of George Orwell's Nineteen Eighty-Four to:

Oakland Tribune
401 13th St.
Oakland CA 94612

Posted by Mark at 11:29 PM | Permalink | Comments (2) | TrackBacks (0)

Every year, the American Library Association celebrates Banned Books Week, which "celebrates the freedom to choose or the freedom to express one’s opinion even if that opinion might be considered unorthodox or unpopular and stresses the importance of ensuring the availability of those unorthodox or unpopular viewpoints to all who wish to read them."

Banned Books Week is being celebrated this year from Sept. 24 to Oct. 1. Here are some BBW resources:

• The 100 Most Frequently Challenged Books, 1990-2000
• The Top 10 Most Challenged Books, 2004
• Pico v. Board of Education, 457 U.S. 853 (1982). In this case, the U.S. Supreme Court ruled that a school board's removal of books that it characterized as "anti-American, anti-Christian, anti-Sem[i]tic, and just plain filthy" was unconstitutional. The case was decided 5-4, with Chief Justice Warren Burger and Justices Powell, Rehnquist, and O'Connor dissenting.
• Banned Book and Censorship Resources
• Cohen v. California, 403 U.S. 15 (1971). This is the case that determines what "obscenity" is. Are you aware that "pornography" has no legal definition? There are two kinds of unprotected speech: speech which can "incite" people to violence, and "obscene" speech. Cohen defined "obscenity" and the Court ruled that a jacket that said "F--k the Draft" was not legally obscene.
• "Focus on the Family Exposes the 'Banned' Books Lie." This is what the other side thinks. James Dobson's Colorado Springs-based Focus on the Family, an evangelical Protestant organization, suggests that the ALA wants hardcore pornography in libraries, alongside classics.

What should you do this week? Go read a banned book! I suggest one of the classics, like Of Mice and Men, which is really short, or The Adventures of Huckleberry Finn (because when Mark Twain uses the n-word, it's because he hates black people). Oh, and don't skip the hardcore pornography, either. I would think that it's in 302, "Social interaction," or in the 700s, the art section.

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