Thursday, July 28, 2005

Perilous Wifi

I have been using wireless networks for my personal internet use for almost three years now. As with every new technology, you take risks when exploring new areas because you expose your computer to malicious software and users. Using wireless internet connections is no different, but at what point does it become too dangerous that government should get involved and protect citizens?

America has long had laws preventing wire fraud, which the code generally defines as any representation made for personal gain to the detriment of the victim that uses the wires. The "wires" have been interpreted in a number of ways. Initially, the law covered the lines used to transmit communications like telephone lines, or lines that are used to transmit assets between locations like banks. If wire fraud statutes cover criminal activity over telephone lines, it stands to reason that they should also cover transmissions through the internet since the internet uses the "wires." No one will question that society also needs laws to curb socially damaging behavior like malicious hacking. Fundamentally, the aim of internet regulation should be limited to virtual simulacra of crimes that already exist, i.e. damage to property, theft, fraud, embezzlement, slander, solicitation of unlawful sexual activity, etc. Lately, though, some leaders want to control access to the internet.

The basic problem is controlling access to wireless internet connections. Currently, the United States Code lacks any provision that prohibits access to open computer networks. The recent explosion of home wireless internet users provides government with the impetus to begin regulating these networks. It’s important to note that regulations do prevent hackers from accessing private networks, but this raises another significant issue. If the goal of the world wide web is to provide unfettered access to information, Congress should not get in the business of controlling access to open networks. Congress could easily use existing statutes to curb access to open networks by perverting the definition of "private network." This wouldn't be the first example of altering definitions in legislation in order to expand the scope of content statutes cover.

Several months ago, the US Attorney General Gonzalez unilaterally redefined the definition of content under 28 U.S.C. 2257. Initially, 2257 controlled sexual exploitation of minors by requiring business that host adult content register with the federal government that the models on the websites were at least 18 years of age. While noble at the outset, the definition of what content falls into the gamut of 2257 now encompasses content that any web administrator places on a website regardless of its origin because the new definition labels any website host an original proprietor. This means that artistic web forums hosted in the United States that post risqué content have to register their content. Effectively, the statute aims to place the adult industry in an administrative stranglehold, but it manages to swallow communicative content not within the targeted class of websites. Section 2257 provides an example of how dangerous it can be to expand definitions in statutory language.

Altering the definition of "private network" could operate much the same way. Currently, it’s illegal to access a network with restricted access, one not readily accessible by turning on your computer and clicking connect. Many frequent wifi users have had this happen. You are sitting in a public place and you turn your computer. When you get into Windows, your computer alerts you that you have connected to a wireless network, but when you start your web browser, the browser displays an error message. The network your computer has logged into has restricted access which prevents you from accessing the internet. Exploiting the hardware to gain access to the internet fits the definition of illegal access to a private network. All of the hardware on the market now that converts an internet connection into a wireless access point comes with this type of data encryption that limits access to the network. It usually comes in two forms, WEP and MAC restrictions. WEP is a form of data encryption that requires a network specified key to access, much like using a password. MAC restrictions operate differently by identifying the computers accessing the network by their physical address or MAC address. Every wireless card has a unique MAC address, and a wireless gateway can restrict access to a wireless network by only permitting access to computers with MAC addresses added to a list by the network administrator. While it sounds confusing, the point is simple. The hardware already provides the user with the option of restricting access to home-based wifi networks by offering both of these security options. What, then, is the point of having legislation that would expand the definition of "private network"?

For the purposes of this thought experiment, the new definition of private network includes wireless network signals owned and operated by private individuals for their personal use. As uninteresting and harmless as that sounds, the definition is sufficiently ambiguous to include any wireless signals broadcast for personal use regardless of whether the owner has restricted access to the network. This would mean that every time you fire up your computer and log into a network that is not your own you have just violated a federal law, regardless of whether that network has restricted access. While absurd at first glance, the policy behind these restrictions is still compelling.

Most people transact a large amount of sensitive business over the internet. Wireless signals put all that information up in the air, literally. Moreover, once this information is flying through the air, it can be intercepted by other users. Many websites handling such sensitive information have started to use encryption to prevent the theft of this information. That theft is a crime known as identity theft, and it qualifies as a type of aforementioned fraud. Making it illegal to access private networks under the extended definition would provide a deterrent for anyone accessing an unrestricted wireless network by sweeping them into a class of criminals despised by almost every internet user. While restricting access to these networks aims to prevent identity theft, it also sweeps a large number of innocent users into the arena of federal criminal prosecution for something as simple as turning on your computer.

Windows promotes wifi usage by automatically connecting to networks. Similarly, the manufactures provide users the ability to restrict access to there personal networks making them truly private. The best policy to avoid pointless prosecution of accidental access and promote the use of the internet would be to leave the law as it currently stands, adopting a "use at your own risk" policy. An analogy is the doctrine of caveat emptor under contract law, or in other words, "buyer beware."

Expanding these laws creates an unnecessary burden on internet users. While the privacy and theft concerns still exist, the ability to protect ones self are built into the hardware that runs the infrastructure. A better way to combat the problem is to produce more educational materials that teach people to protect themselves, or provide incentives to software manufacturers to create programs that make network encryption extremely user friendly. There are better options than allowing the federal government to control the way we use the internet in this manner. Personally, I would rather the government spend their time on more fruitful pursuits.

Tuesday, July 05, 2005

Extending takings at the cost property of rights?

Recently, the United States Supreme Court handed down what appears to most as a monumental case which denigrates the personal property rights of the citizenry. Thankfully, that initial response is somewhat blown out of proportion.

In Kelo v. New London, 545 U.S. __, __ S.Ct. __, 2005 WL 1469529 (2005), the Supreme Court considered a situation where the city of New London, Connecticut, attempted to revitalize a residential area surrounding an abandoned Navy base. The redevelopment aimed to bring more tax revenue and jobs into the area. Unfortunately, this plan required the displacement of 115 private property owners. Under the City's redevelopment plan, the City would condemn the private property through its eminent domain power and a state statute that allowed the City to take private property for redevelopment. The Court majority comprised of Justices Stevens (writing the opinion of the court), Kennedy, Souter, Ginsburg, and Breyer, concluded that the taking of the private property did not violate the takings clause of the Fifth Amendment of the Constitution.

The initial idea of the Court's holding is repugnant. At first glance, the Court's opinion appears to validate public takings for private benefit. This is the antithesis of the ideal behind the takings clause. Fifth Amendment jurisprudence has always condemned the proposition that government may take the property of private citizen A to give to private citizen B. Rather, for government to take private property, the Constitution requires that the taking satisfy some public use. Typically, government projects like building roads, railways, or schools satisfy this end of the public use doctrine. Kelo, though, aimed to take private property to allow the division of the property for building private office complexes that would house private business, and in the process creates 1,500 new jobs. The development would also bring in more tax revenue to the City. The impetus for the taking was Pfizer's plan to build a new research facility in New London. It’s important to note that part of the plan included a public Coast Guard Museum. The City conceived the plan after considerable research, planning and organization, expending time and energy to assure that the project would create the benefits to which it aimed. While on these facts it appears the City displaced 115 private landholders for the benefit of only a few other private interests, the Court majority concluded otherwise.

Justice Stevens began by reiterating the history of takings clause jurisprudence. He concluded that the Court and the law had departed from the conservative notion of takings restricted to public use only. Rather, the majority reasoned that a taking must fit a public purpose. This public purpose could include economic redevelopment. The majority quickly pointed out what was not at stake in this case, stating:

"...without a bright-line rule nothing would stop a city from transferring citizen A’s property to citizen B for the sole reason that citizen B will put the property to a more productive use and thus pay more taxes. Such a one-to-one transfer of property, executed
outside the confines of an integrated development plan, is not presented in this case."

Moreover, the Court concluded that this was not the issue presented before the Court; rather, facts supporting this bright line rule would appear more suspect of serving only a private purpose. The Court took great pains to establish the historical definition of public purpose, fitting it to situations that include the benefit of some private parties as well as the public. Similarly, the Court relied on a strict notion of federalism in making its decision. Much of the verbiage points to the extent to which New London prepared the redevelopment plan, and how the judiciary is not in a position to value land like municipalities or state agencies who understand the situation more thoroughly than the courts.

Ultimately, the Court validated takings that are subject to extensive executive or legislative review in the event that the takings satisfy a reasonable public purpose.

The Dissenters vehemently disagreed with this conclusion. Justice O'Connor, joined by Justices Thomas, Scalia, and Chief Justice Rehnquist, argued that this holding would allow the types of public takings for private use that the law finds repugnant to the concepts of private property. O'Connor argues for the bright line rule rejected by the Majority, positing that it’s the only clear way to protect private property owners from the abuses that emanate from the Court's decision.

The Dissenting opinions have a significant point. It does not take much to swing the balance of reasonableness in favor of a private owner. While the Majority asserts that the factual nature of the holding will limit any possible abuse, specifically the extent to which the City planned the redevelopment along with the projected ubiquitous benefit to the City's constituents, fails to overcome the expansive definition of public purpose upon which the Majority hangs it's hat. The decision denigrates the value of private ownership by lowering the threshold required to permissibly declare eminent domain. This decision is dangerous for two reasons: first, because it reduces the standard applied to government in takings cases by evicerating the public use doctrine and establishing the public purpose standard; and second, it opens the door to possible abuse by creating an ambiguous standard the Majority admits fits almost all of government action.

For those fearing the loss of their property to tyrannical government, the Majority does offer solace. Kelo is a very fact specific decision, and does not preclude states from creating strict laws preventing takings. Unless the Government goes to great lengths to plan a development where your home sits, the Court will most likely not allow the government to take your home. This means that many of the stories springing up in the news about private business petitioning for eminent domain and condemnation of private homes rely on the erroneous proposition that Kelo gives them that right.

Our homes may be safe at the moment, but the ambiguity of public purpose has yet to be tested and may ultimately prove the loophole for government to publicly take property from one private owner to give to another, simply by justifying every government act as serving the public purpose.