Jeffrey Rosen:

The question of free speech online isn’t just about what a company like Google lets us read or see; it’s also about what it does with what we write, search and view.

Google’s claim on our trust is a fragile thing. After all, it’s hard to be a company whose mission is to give people all the information they want and to insist at the same time on deciding what information they get.

“We’re at the dawn of a new technology. And when people try to come up with the best metaphors to describe it, all the metaphors run out. We’ve built this spaceship, but we really don’t know where it will take us.”

This a long article that touches on a number of things including Joe Lieberman's request that YouTube remove jihadist videos even if they were protected by U.S. law as well as the Global Network Initiative about which I need to do more reading.

Google’s Gatekeepers

Using data provided by the U.S. Census Bureau, the ACLU has determined that nearly 2/3 of the entire US population (197.4 million people) live within 100 miles of the US land and coastal borders.

The government is assuming extraordinary powers to stop and search individuals within this zone. This is not just about the border: This " Constitution-Free Zone" includes most of the nation's largest metropolitan areas.

My understanding is that they cannot perform a border search when they are not at the border unless its fairly clear that you did cross the border. This ACLU information suggests otherwise but doesn't substantiate that suggestion as far as I can tell.

American Civil Liberties Union : Constitution Free Zone

We know that if you publish pornographic material on the Internet, federal prosecutors can choose to bring trial against you almost anywhere in the nation. And if Paul F. Little's (a/k/a "Max Hardcore") prosecution is any guide, figure a conviction means about 4 years in the pen, minimum security.

But then, you can argue he got off easy -- the 20 counts of obscenity Little was convicted of carried a potential penalty of 100 years.

There is very little press coverage of this sentencing other than some commentary by Glenn Greenwald. I don't agree with Greenwald. He includes pictures of Abu Ghraib and somehow neglects to mention that people were sentenced to long prison terms over than incident, a fact (among several others) which undermines his point. I didn't read a lot of the attached thread but no one seems to pick up on that. There is, however, a lot of noise about the pornographer in question being a really bad guy who does really bad things and who needed to go down.

I don't know anything about this guy or his porn. However, he wasn't convicted for assaulting or abusing actresses. He was convicted for making consensual porn with adults. He was convicted of obscenity, something that hasn't happened in this country for many years, AFAIK. Something which has been used in very recent history by moralists as a weapon to attack disfavored ideas and groups of people.

After the election in 2004 the Bush administration demanded that obscenity prosecutions be dusted off in order to hand a bone to the conservative base who reelected him. This is one of those prosecutions. It was a success. One of two things will happen from here. Either a new president will put an end to this project, or it will continue to expand, including a greater scope of ideas into the realm of prohibition until it again becomes a serious threat to freedom of expression.

I expect that a McCain/Palin presidency would allow this program to expand. I'm not sure about an Obama/Biden ticket. It seems the sort of thing that the Biden/Clinton wing of the democratic party would strongly support but it might not end up on Obama's priority list. So, its worth paying attention to. It might end here, but it might not, and if it doesn't, it will inevitably become a serious problem.

What's Really At Risk At A Federal Obscenity Trial? About Four Years In Prison

If a false entry in a database leads to a unconstitutional police search that reveals illegal drugs, does the government get to hold it against you?

That's the question the Supreme Court will tackle on Tuesday in a case civil liberties groups such as the Electronic Privacy Information Center argue will have broad implications in a world where we are constantly being evaluated against databases and watch lists that are riddled with frustratingly persistent errors.

"In these interlinked databases, one error can spread like a disease, infecting every system it touches and condemning the individual to whom this error refers to suffer substantial delay, harassment, and improper arrest," EPIC director Marc Rotenberg argued in a friend of the court brief (.pdf).

Supremes Mull Whether Bad Databases Make for Illegal Searches | Threat Level

Old Policy:

The U.S. Customs Service must guard the rights of individuals being inspected to ensure their personal privacy is protected. Therefore, as a general rule, Customs officers should not read personal correspondence

New Policy:

In the course of a border search, and absent individualized suspicion, officers can review and analyze the information transported by any individual attempting to enter, reenter, depart, pass through, or reside in the United States.

Same old fucking excuse:

DHS spokeswoman Amy Kudwa says "The decision to change standards reflects the realities of the post 9/11 environment."

New Border Search Policy Far Broader, New Documents Reveal | Threat Level from Wired.com

More hand wringing about the need for comprehensive repudiation of America’s culture of civil liberties. I figured the tone of this kind of talk would be winding down these days.

Our Constitution, Dershowitz writes, “was designed with the ‘reactive state’ in mind.” But now the state has taken on an ever-more-important preventive function, stopping terrorism before it can occur. Our legal system, however, has not caught up with this new function.

Torture warrants, Dershowitz insists, are one way to shine law’s light on this darkness, especially if one believes there are times when torture should be permitted.

“We need to develop a jurisprudence for the emerging preventive state. … Black holes in the law are anathema to democracy, accountability, human rights and the rule of law.”

How realistic is the specter of nuclear terrorism?
Are these changes necessary to prevent it, or is this just facism feeling around for a rationalization?
It seems to me that surveillance is more central to this preemptive law enforcement system than torture. Does Dershowitz also think we should have warrantless surveillance warrants?

To Torture or Not to Torture - Paper Cuts Blog - NYTimes.com

Customs and Border Patrol agents can grab your laptop, BlackBerry, or external hard drive without needing so much as a reason, but a new bill introduced last week to Congress would at least put some limits on how border searches could be done.

"I was deeply concerned to learn about the lack of protections individuals' have when their electronic equipment is randomly seized," said Rep. Loretta Sanchez (D-CA), who introduced the bill. "With the passage of the Border Search Accountability Act of 2008, Americans will be able to travel with more peace of mind knowing that their data will be further protected and that there are stringent accountability measures in place for safeguarding their personal information."

Note what her bill will not do—make searches more difficult.

This isn't what we really want, as it doesn't attempt to set any limits on searches. It does add more transparency to the process, and that is a good thing. It should be supported.

Sanchez's bill would bring more routine to the search process. The bill requires the government to draft additional rules regarding information security, the number of days a device can be retained, receipts that must be issued when devices are taken, ways to report abuses, and it requires the completion of both a privacy impact study and a civil liberties impact study. Travelers would also have the explicit right to watch as the search is conducted.

Sanchez also wants data about the searches, which would have to be turned over to Congress once per quarter. Specifically, she wants to know how many searches are being done, where they take place, and the race and nationality of those being searched.

The Department of Homeland Security actually issued search rules over the summer; while they were the first rules made public on the process, which had started to look quite ad-hoc, they still came in for criticism from groups like the Association of Corporate Travel Executives. ACTE, which doesn't like have executive laptops pinched whenever someone travels overseas, complained in early August that devices could basically be kept indefinitely, the data could be shared with foreign governments, and no data destruction procedures were spelled out.

This is unlikely to make it out of committee in any form before the end of the current congress. The situation is getting much needed attention though.

New bill would tighten rules for DHS border laptop searches

The Massachusetts Bay Transportation Authority filed a suit in federal court on Friday seeking a temporary restraining order to prevent three undergraduate students from the Massachusetts Institute of Technology from presenting a talk at the DefCon hacker conference this weekend about security vulnerabilities in payment systems used in the Massachusetts mass transit system.

Someone just joined "the club."

DefCon: Boston Subway Officials Sue to Stop Talk on Fare Card Hacks | Threat Level from Wired.com

The Transportation Security Administration suspended Verified Identity Pass from enrolling any new passengers in its get-through-security-faster program on Tuesday, after the company lost (and then oddly found) a unencrypted laptop containing personal information of 33,000 people who had applied for the so-called Registered Traveler program.

Well, that didn't take long, did it.

Registered Traveler Company Frozen After Losing Flier Data -- Updated | Threat Level from Wired.com

Here is Chertoff's USA Today editorial. It provides a lot of explanation of the "broad" authority that they have and the importance of being able to search things but at no point does it directly engage the need for random searches without reasonable suspicion.

We cannot abandon our responsibility to inspect what enters the U.S. just because the information is on an electronic device. To do so would open a dangerous window for terrorists and criminals to exploit our borders in new and unacceptable ways.

And that is why we are now randomly inspecting international internet traffic! Oh, wait, we aren't, and in fact we just agreed to a new FISA bill that would require a warrant to do that... It turns out I have no idea what I'm talking about.

Opposing view: Searches are legal, essential - Opinion - USATODAY.com