A federal appeals court in California is reviewing a lower court's definition of "interception" in the digital age.
The case, Bunnell v. Motion Picture Association of America, involves a hacker who in 2005 broke into a file-sharing company's server and obtained copies of company e-mails as they were being transmitted. He then e-mailed 34 pages of the documents to an MPAA executive, who paid the hacker $15,000 for the job, according to court documents.
The issue boils down to the judicial definition of an intercept in the electronic age, in which packets of data move from server to server, alighting for milliseconds before speeding onward. The ruling applies only to the 9th District, which includes California and other Western states, but could influence other courts around the country.
In August 2007, Judge Florence-Marie Cooper, in the Central District of California, ruled that the alleged hacker, Rob Anderson, had not intercepted the e-mails in violation of the 1968 Wiretap Act because they were technically in storage, if only for a few instants, instead of in transmission.
"It could really gut the wiretapping laws," said Orin S. Kerr, a George Washington University law professor and expert on surveillance law. "The government could go to your Internet service provider and say, 'Copy all of your e-mail, but make the copy a millisecond after the email arrives,' and it would not be a wiretap."
Privacy is one of the most important concepts of our time, yet it is also one of the most elusive. As rapidly changing technology makes information increasingly available, scholars, activists, and policymakers have struggled to define privacy, with many conceding that the task is virtually impossible.
In this concise and lucid book, Daniel J. Solove offers a comprehensive overview of the difficulties involved in discussions of privacy and ultimately provides a provocative resolution. He argues that no single definition can be workable, but rather that there are multiple forms of privacy, related to one another by family resemblances. His theory bridges cultural differences and addresses historical changes in views on privacy. Drawing on a broad array of interdisciplinary sources, Solove sets forth a framework for understanding privacy that provides clear, practical guidance for engaging with relevant issues.
Understanding Privacy will be an essential introduction to long-standing debates and an invaluable resource for crafting laws and policies about surveillance, data mining, identity theft, state involvement in reproductive and marital decisions, and other pressing contemporary matters concerning privacy.
If you work in privacy or data protection either from a technology or policy perspective, you need to read this book and understand Solove's approach.
There are three major elements to the book: the first is to take us past the definitional games of "what is privacy." The second is a serious attempt to address the "what do you have to hide" approach to privacy. The third is the taxonomy. Two of these would have been a pretty good book. Three are impressive, even as I disagree with parts of it. Again, this is an important book and worth reading if you work in or around privacy.
To paraphrase President Clinton's 2002 remark, American voters generally seem to prefer strong and wrong to smart and right.
The Republican party has been seen as "tougher," regardless of the effectiveness of its policies. This faith in Republican toughness has had profound electoral consequences.
Donald Rumsfeld may be remembered for his policy failures, but he should also be remembered for the question he posed in a leaked memo in 2003:
"Are we capturing, killing or deterring and dissuading more terrorists every day than the madrassas and the radical clerics are recruiting, training and deploying against us?"
Two terms of Republican rule have been disastrous for US national security. The question is: Have American voters noticed?
On January 21, 2000, a year before he would move into the White House, Bush said:
When I was coming up, it was a dangerous world.
And we knew exactly who the "they" were.
It was us versus them, and it was clear who "them" was.
Today we're not sure who the "they" are but we know they're there.
In his National Security Strategy for 2002, Bush used the words "liberty" eleven times, "freedom" forty-six times, and "dignity" nine times; yet people who live under oppression around the world have seen few benefits from President Bush's freedom doctrine. Richard Armitage, former deputy secretary of state under Bush, put it best when he said, "Since 9/11 our principal export to the world has been our fear."
From the archive:
"You can't talk sense to them," Bush said, referring to terrorists.
"It's very hard to enter the rectum, but once you do things move much faster."
...
The lions awoke, panicked and scattered into the bushes. The buffalo then trotted victorious back to the pride. It was a perfect illustration of the adage that the best defense is a good offense.
According to one who was present, Churchill suddenly blurted out: "Are we animals? Are we taking this too far?"
The eXile, the Moscow-based alternative paper founded by Mark Ames and Matt Taibbi — and which has been home these past few years to occasional TAC contributor Gary Brecher, the War Nerd — has been shut down by Russian authorities.
"The best test of truth is the power of the thought to get itself accepted in the competition of the market," wrote Justice Oliver Wendell Holmes in his 1919 dissent in Abrams v. United States, which eventually formed the basis for modern First Amendment law.
"Canadians do not have a cast-iron stomach for offensive speech," said Jason Gratl, a lawyer for the British Columbia Civil Liberties Association. "We don't subscribe to a marketplace of ideas."
"Western governments are becoming increasingly comfortable with the regulation of opinion. The First Amendment really does distinguish the U.S., not just from Canada but from the rest of the Western world."
Building the Change Congress Movement | Berkman Center
Topic: Politics and Law
10:24 pm EDT, Mar 31, 2008
10 years into the Berkman Center and 5 years into Creative Commons, former Berkman Center Faculty Director and current crusader against congressional corruption Lawrence Lessig is coming back to Cambridge.
Celebrate Professor Lessig's return to the Harvard campus on Friday April 4th, where he will speak about his new effort: Building the Change Congress Movement.
The defendants were college buddies who hatched a plan to steal rare books from the special collections library at Transylvania University in Lexington, Kentucky and sell them at auction in New York City. In July 2004, after months of idle discussion, these four men decided in earnest to carry out the robbery, which led to months of research (about rare books, auction houses, Swiss Bank accounts, etc.), brainstorming, and planning. Each of the four took on separate responsibilities: Warren Lipka created aliases ("Walter Beckman"), set up email accounts, and contacted the library and various auction houses. Spencer Reinhard created disguises, drew floor plans and maps, and created false documents. Eric Borsuk and Chaz Allen staked out the library, planned the getaway, and purchased snacks for the trip.
(Hat tip to Harper's for the title; I also recommend their edit of the decision, which is shorter and more dramatic, but alas, not (yet) freely available)
Much of the constitutional struggle that engulfed the English-speaking world in the seventeenth century revolved around two fairly simple phrases. One was “no man is above the law,” and the other “the king can do no wrong.” Each of these expressions reflected a fundamentally different notion of the rule of law, and they could not be reconciled.
Post-Restoration Britain found a series of legal fictions to address the problem of misconduct by the state, but in concept this often turned on the notion that the king commanded compliance with the law so that unlawful conduct could not be the king’s.
In America today, the mentality of courtiers has reappeared, and many of them seem bent on reassembling the fragments of that old crown that our ancestors brushed from the head of a Hanoverian usurper. They’re offering that crown up to a new King George. And the new attorney general, barely three months on the job, is installing himself not as a law officer to a republic but as a lackey bent on undoing not one revolution, but three.
What were those legal principles that allowed the Justice Department to find that torture was not torture, and that torture was therefore lawful? When we pull back the curtains, and shine a bright light, we find it rested on the same royal prerogative that Charles Stuart maintained all the way up the steps to the scaffold.
