Sealing the Last Hole

ArsTechnica is reporting on a resolution in the house of representatives that will "close the analog hole." What this means to the rest of the computer using public is the end of being able to convert analog media content to digital. This would require that any media player made within about a year of the passage of the legislation to recognize flags in digital media that determine their authenticity. All of a sudden this looks like another disastrous idea the tech giants tried to push through over the summer, the so-called broadcast flag legislation. I guess what worries me most about this particular legislation is that it would create problems for vendors like TiVo. The House Reps pushing the bill focus on a particularly damaging case where a defendant pled guilty to selling $20 Million worth of illegally produced, copyrighted material. To "pirate", we must buy special hardware, say a computer. Then, we like to convert said software to a portable form of hardware which requires more hardware, like iPods. You think that Republicans who are interested in helping the economy would let every form of "piracy" occur to promote other aspects of the economy. Defendant's like the $20M pirate are different than the every day user. This legislation shouldn't hurt the everyman and the economy at the same time. There are reasons congress moved against the trusts and monopolies after the depression. I guess I hope that we can learn from our mistakes, and see the evil end coming sooner rather than later.

Uh...Um....But...Well...

Far be it for me to say what Congress should do with its time, you know, being a voter and all, but maybe I thought there was a list of things they should not be doing. If I remember correctly, one of those things is not creating laws that favor one religion over another. The title link goes to a story about a resolution in the House that aims to protect the "themes" of Christmas. I am pretty sure that any Congressional endorsement of any religion over another will violate the establishment clause. The problem is that I can't decide whether I need to re-read the First Amendment, or Congress needs to brush up on what the Bill of Rights says.

More Compu-stupidity...

The title link goes to an MSNBC story detailing a new microchip that may find its way into computers in the near future. This particular chip holds information regarding the computer user's identity, and can be accessed from the web by websites to identify the computer user. To MSNBC's credit, they give the chip a fair review both to its benefits and detriments. Regardless of how easy it may make online commerce, I think this is a bad idea for one very important reason, identity theft is already a big enough problem, we don't need to provide phishers with anything that will make their illegal activity any easier. This chip will do just that. Imagine having a chip on your computer that contains enough personal information to identify you as the perpetrator of other cyber crimes. This is literally only your name, I.P. address, and possibly home state. A brilliant hacker would have an easy time copying this information from an unsuspecting visitor of his/her site and using the information as a mask to go hack someone else's computer, bring down the wrath of the RIAA/MPAA, or even shop with online credit if the information were sufficient to permit it. Congress need not get in the business of determining what technology the individual must have. We are better off making things slightly more complicated to prevent crime than making it easier for those who wish to exploit a person's privacy.

Legislative futility: regulating video games

The Grey Area in print this month deals with the push to regulate the content in video games. This was the topic of the 17th Annual Swygert First Amendment Moot Court Competition at the Valparaiso University School of Law, and a multitude of lawsuits all over the country. I approached the topic purely from a policy perspective, and frankly, this is an area that the government needs to avoid.

Democracy 2.0

Wiki-law is a democratic experiment aimed at determining how laws should be made. This is an interesting read, and really demonstrates the way society probably should proceed with socially acceptable practice. Some thing, though, don't make much sense. One positive example is redefining marriage's role in society, and who may attain the socially recognized status of marriage. One negative example is the proposal that copyrights only last for one year. This does not take into account the profit aspect of information in capitalist society. While this experiment will likely be more beneficial as a litmus test for public opinion, it does fail to consider the impact of economics on social structure and law.

DRM: From Inside the Industry

The title link goes to an op-ed in the New York Times describing the detrimental effects of Digital Rights Management from a musicians perspective. Interesting read, maybe now big business will start listening, and save us all from future problems like the Sony Rootkit.

Educating Out Freedom of Speech

Education in America stands at the pinnacle of teaching the body politic that its rights remain supreme over the institution of government regardless of the circumstances. Legally, these protections don't extend to private education, but to what extent should we sacrifice permitting exercise of free speech regardless whether the speech is in good taste. The title link goes to a story about a dental student at Marquette University. Apparently, the student posted some personal opinions about a teacher on his blog that got him expelled from school for the remainder of the academic year. Regardless of the area of study, should we, as a society, condone permitting educational institutions to limit speech in the public sphere? Blogs have exploded around the globe as a vehicle for the exercise of free expression. Holding individuals responsible for their speech limits the effectiveness of the First Amendment. Chilling speech, in any way, works towards the break down of this most fundamental of civil rights. While there are limits on the protections provided by the First Amendment, any action limiting speech should fit well within the confines of unprotected speech.

Illinois Video Game Law?

For all of my Moot Court collegues, the title link goes to a CNN story about how a district court invalidated an Illinois statute prohibiting the sale of sexual explicit and excessively violent video games. This isn't unbelieveable since the Seventh Circuit has invalidated these laws on two occasions so far. Regardless, everyone in the VUSL Moot Court Honors Society should get a kick out of this.

Illegal Open source?

The title link goes to a story about recent legislation proposed in France that will effectively ban the distribution of open source software. Why do we care? The Digital Millennium Copyright Act (DMCA) effects things in the US in a similar way. VideoLAN is a media player effected by this legislation because of the software it uses to circumvent restrictions on DVD's. In addition, the legislation will make every Linux distribution that plays DVD's or copy protected media illegal, at least in France. Expanding this domestically will significantly limit the expansion and development of desktop Linux. Interestingly, one federal circuit court of appeals has already held that computer code falls within the ambit of First Amendment protections. If this is the case, the government can't prohibit the production of computer code. This places copyright interests in playable formats at odds with the First Amendment protecting code. So which trumps?

It would seem that most businesses would benefit from permitting all kinds of media players to play their media. This will provide the consumer with the ability to purchase and play DVD's or CD's on any operating system. Using specific software will fundamentally limit market share because people won't buy what they can't play using software of their choice. These things won't benefit business even if they aim to protect intellectual property rights. The best bet for everyone to prosper is to criminalize distribution. This will throw open the market for media players, protect copyright law, and not criminalize hobby programming. Regardless, this idea is asinine. Government should not be in the business of picking and choosing what software people use. Moreover, the government should not support big business's abuse of the consumer.

The End of Copyright?

I need to preface this post with a note that the title article comes from a video game centric blog. Parts of this post will respond directly to that article but will also scope over a broader range of the concept. I also apologize for a long post.

I don't agree with this article simply because it falls a little far down the slippery slope. Looking at this in a vacuum without any pragmatic background, the author makes an interestingly abstract point. The advent of new technology does, on some level, diminish individual property rights in intellectual property. Weakened rights stem from the diminished control of intellectual property once its left the producer hands. Digital music is a good example. Consumption of digital music exploded with the birth of internet giants like Napster, and the "owner's" of digital material were unable to control the profit scheme for mass market consumption. Recently, a new approach to digital content has sprung up around this digital debacle. Sony's rootkit mess is a good example. On a tangential note, controlling use in the digital age is futile due to the ability of the users to alter content and the method of consumption. I don't think, however, will not amount to the end of copyright or intellectual property rights as the article hypothecates.

Some material, like console games, will be easier to control since they are reliant on a specific kind of hardware or software for use. Music, movies, and books, lack this dependence, but each presents its own problems. E-Books are easy to transport, but hard to read since LCDs cause excessive eye-strain. As a result, books will always be in production, and the control of distribution remains with the producers. Music and movies are a special case since they are not dependent on anything, and readily transferable into several different consumable forms. This modular use should not cause the industries to worry and jump on any technology band-wagon that is hostile to consumers. The industry needs to figure out how to control sharing, and the United States Supreme Court decision in Grokster was a step in the right direction. An analysis of the case reveals that the Court did enforce intangible property rights by providing a cause of action against those who distribute protected material. This will not likely push the file share "industry" into open source because "the" open source program, namely bittorrent, already has terms of service restrictions on sharing protected material. The demise of Grokster and the rise of iTunes should provide some substance to alleviate the fears in the industries. Regardless, this does not point to an end of copyright. Rather, this points to a necessary shift in the administration of these rights through the legal system. Industry v. Consumer action will likely spell the end of the industry. Distribution models and laws benefiting both the individual and the industry are necessary. How about restructuring business models and criminalizing distribution rather than changes in formatting for personal use, like with VCRs in the 1980's?

Going too far?

While its no secret that law enforcement may request wire taps on internet services, the FCC wants to take it one step farther. The title link goes to a story detailing a new movie by the government to make it extraordinarly easy to access information flowing over the web. The premise for this particular action is to assist the department of homeland security in investigating and stopping terrorists. The other side of the coin is the privacy rights of the average individual. How far do we have to go before these regulations provide the government with the power to watch over every individual regardless of whether they are breaking the law? One relevant question is whether intangible information like electronic paper qualifies as papers or effects under the Fourth Amendment. Moreover, this seems like it could open the door to outrageous restrictions on the First Amendment if the government decides to get into the business of censoring the internet. Arguably this has already happened with broad statutes that aim to protect children. This can't stand, call your congress-person.

Interesting Approach to Revolution

So the The Times is running a story on a blogger/camgirl who is taking an interesting approach to the political division in China. Not that the bloggers fighting the man is anything new, but in this case, the weapon is humor. Its abnormal to think that a 25 year old self-proclaimed party girl would be fighting for civil liberties, but the reality is this attempt to speak, regardless of the fashion, utilizes a hotly contested method of communication. The internet is changing into the meeting place for the liberation movement, see France circa two weeks ago. What's even more interesting is that this humorous approach could . While Mu Mu is making a stand on a divisive political issue, her approach softens the blow and gets people interested. More power to her. The worst thing is that a government actually wants to end this exercise.

Proving the Aged Axiom...

The title link goes to an article about how an exhibit at the American Museum of Natural History almost wasn't because it couldn't get a corporate sponsor. Interestingly enough, corporations feared the negative press that could evolve from sponsoring the exhibit because it chronicled the work of the in/famous Charles Darwin. Apparently, business didn't want to rebuff possible customers by tacitly supporting evolution over other concepts of the origin of life like intelligent design.

Notwithstanding the subject matter of the exhibit, this news-byte demonstrates that refusing to do anything means you have still made a choice. In instances like this, that choice may not produce beneficial results, and assist in propagating misconceptions about empirical process which defines the sciences. Moreover, it demonstrates the devolution of capitalist ideology proving once more that the almighty dollar rules even the most rational of thought processes.

I am pleased to say that the exhibit was saved by a private charity. A big thanks to those who saved the day.

Congratulations to Chicago Kent School of Law

Just a quick post to congratulate a friend of mine on a national moot court win. Elaine Wyder-Harshman and I both worked for the Illinois Attorney General's Office last summer. The title link goes to the story. Congratulations again Elaine, and good luck to Kent at this years Vanderbilt competition, they should look for strong competition from us here at Valparaiso University School of Law.

Don't forget to read The Divide Destroying Democracy.

Diminishing Rights of Detainees...

Last term, the United States Supreme Court determined that detainees held by the military during war time had a right to due process in the American legal system to challenge their detainment. This allowed the detainee to petition the Federal District Court through a Writ of Habeas Corpus. The title link goes to a story about how the Senate just passed a bill that would circumvent this decision, effectively obliterating any due process rights detainees may have had. In order for this particular statute to avoid violating the Constitution, it has to be made under Congress's power to limit the jurisdiction of the federal courts. While this highlights the tension between the politics of the executive/legislative branches and the judiciary, the larger problem is the willingness of lawmakers to limit the rights of those with the fictional title of "enemy combatant." This title works in a particularly negative way. Its not a term acknowledged by international human rights treaties. This means that permanent detention is not within the restrictions of the Geneva Convetion. While a moment of rhetorical brilliance, do we really want to allow our government to violate human rights by changing the definition of who may be a detainee?

Don't forget to read "The Divide Destroying Democracy."

More on Gay Marriage Bans...

The title link goes to a blog by John Ichikawa. I came to it through a post by another blogger, Wesaturtle, whom I became exposed to via Fazed. Now that the circle is complete, lets get to the point. Jonathan's blog post deals with a law just passed in Texas banning gay marriage. The language of the Texas state Constitutional Amendment indicate on their face that it bans all marriage. I posted a comment to his post detailing how this probably isn't the case. the language indicates that marriage is constitutionally defined in Texas as between a man and a woman. The following subsection states explicitly that no governmental entity in Texas may acknowledge a marriage that does not fit the definition in the prior subsection. This goes back to my repeated rebuke of limitations on definitions of marriage. Under cases like Loving v. Virginia and Lawrence v. Texas, its more likely than not that a future panel on the United States Supreme Court could invalidate these restrictions under due process and equal protection.

Please don't forget to read "The Divide Destroying Democracy" and promote my use of alliterations as titles.

The Divide Destroying Democracy

The Grey Area this month takes a philosophical swipe at the bipartisan party structure in American politics. Ideally, political parties help express specific ideas through the political process. Unfortunately, the structure of the parties is doing a disservice to the goal of allowing more citizens express their political beliefs.

I Don't Know Why but This Bothers Me...

The article in the title link informs the American Public that its President currently wages war against individuals it calls political enemies. What is even more interesting is that these so-called enemies are American Citizens, and the executive keeps files on each one of them. This process started when Bush was Governor of Texas. Sounds more like Gestapo politics to me. I was unaware that having an adverse political opinion these days could land you on the political enemy combatants list...

DRM IS EVIL!

This blog makes no bones about the fact that I can't stand DRM (digital rights management). The only thing worse is when the government backs DRM with legislation already struck down by the Courts as unconstitutional. Unfortunately, the Broadcast Flag legislation is back. Ladies and gentlemen, this is an attemtp to restrict information flow to the American people. This is asinine. Call or write your congressman. Please!

Proof That No Good Deed Goes Unpunished...

Wired News is running a story about a group of animal rights activists that is suing the proprieter of the Altamont Wind Farm because of the environmental hazards its poses to avian ecosystems. Everyone has seen the Altamont Wind Farm in a green energy commercial, usually through some cinematic footage flying over the turbines of the giant wind generators. While the wind farm is hearlded by many as the greatest experiment in green energy ever conducted, some of the animal friendly oppose the full operation of the farm because of its desparate impact on migritory birds whose flight path goes through the wind farm. The large blades of the generators are responsible for an increasing number of avian deats each year.

This is one of those stories you can't help but scofe at. Apparently the hippies don't have anyone else to annoy with frivolous lawsuits, so now they have taken aim at one another. Conversely, this could be the begining of seeing green energy as viable corporate production equal to, or supplanting, utilities dependent upon non-renewable resources. While I hope its the latter, what stands out in this story is the fact that like minds have now decided to sue one another. This situation also demonstrates that there are very few things modern man can do to preserve the environment without impacting mother nature in some other adverse way.

Following up on open documents

A while ago, there was quite a to-do over the Massachusetts legal system choosing to go to open document formats. The title link goes to an article responding to criticisms by Microsoft boosters. In this particular harangue, I want to throw out a constitutional ideal. Open document formats are available free to the public through the open source licensing scheme and the general public license scheme. This could equal a brave move by the state of Massachusetts to allow access to the courts by anyone with a computer and an internet connection. OpenOffice.Org allows anyone to use a full suite of programs to create documents. Now, these documents are admissible for court filings in Massachusetts. Allowing the everyman to participate in the legal system breaks down the walls and opens the doors Kafka contemplated as the bar to many individuals from influencing the legal system.

Abstracting Booker

This column was printed in the October 12, 2005, issue of the Valparaiso University School of Law newspaper, "The Forum."

Last term, the United States Supreme Court considered the Booker case. This opinion dealt with the sentencing scheme in criminal cases. More specifically, the confusion that has resulted in the Court's decision to declare the standing sentencing scheme unconstitutional. The coming terms will tell how this decision will affect the federal criminal justice system in the future.

Not So Free Information

It boils down to limiting the use of broadcast information by embedding it with a tag. The Broadcast Flag is a function of lobbiests jockeying for legislation that would allow the MPAA and RIAA to increase the strength of their relentless campaign against the average individual, freedom of information, and the interests of free speech. As the linked article above indicates, the federal courts have already demonstrated that the flag exceeds the constitutional power of the FCC to mandate that every television be capable of interpreting the flag. Interestingly enough, the legislation is coming before Congress for a mandate by the federal government.

Increases in personal technology allows the everyman to do much more than she or he could before. This includes record media transmissions. The first major manifestation was Napster. Now, advancements in video recording hardware and software have allowed access to video content in the same way. The Broadcast Flag aims to prevent this by limiting what information may or may not be recorded. Oddly, it only works with high definition television. Entities standing to benefit from this legislation could include the MPAA, the RIAA, any electronics manufacturer (your 3 year old HDTV will now be obsolete), Comcast (specifically their On-Demand business), and DVD rental establishments. It hurts the average person and the non-corporate visual and musical artists, and will annoy TIVO users. Why should the everyman be interested in this legislation? It will significantly inhibit your ability to exercise free speech by requiring a form of government intervention to determine whether or not you actually have a right to speak. It gives big business the ability to control what is said, who says it, and what method it is disseminated. Contact your Senators and tell them to prevent the creation of the broadcast flag.

More Legal Absurdity...

So I am doing a lot of blogging on the current battle between P2P networks and the record industry. This is another interesting example of the stupidity that occurs when people try to secure their intangible property interests. Whats worse, this time around they are violating the law to secure that interest.

Many people know of the RIAA's assault on P2P networks. Now, though, the European counterpart is distributing maleware (malicious software) that seeks out and deletes P2P software on user's computers. Fundamentally, the maleware has to operate like a virus, and it is, after all, considered maleware. Releasing this software would violate all kinds of laws that are usually used to convict hackers and writters of big worms everyone is always worried about. This blatant act of internet vigilantism should be punished like any other illegal act not withstanding the benevolent intent. Realistically, this is the media industry violating someone elses copyright by hijacking their software. No matter how you spin it, its a perverse tit for tat.

Grokster, or how i learned to fear copyright infringement

It's once again time for the monthly print installment of "The Grey Area" that appears in The Forum. This one focuses on the recent case decided by the United States Supreme Court involving the liability of peer to peer file shareing software for copyright infringement. As the title implies, its hard to tell exactly what the Court was doing. The title link goes to the article in .pdf format.

From the "That Makes NO F@#$ing Sense" Department

I freely support the fact that anyone convicted of a crime and incarcerated for an extended period deserves the right to petition the courts for relief when they are allegedly being mistreated. While most of these cases are quickly dispatched by state motions to dismiss, some are just asinine. Apparently, the 6th Amendment now provides protection for porno in prison. Wait, it gets worse. The inmate petitioning to have the right to view pornography is serving a life term for a brutal rape followed by a triple homicide.

Though I am a consummate supporter of individual rights as written in the Constitution, prison still has to resemble punishment. I guess someone forgot that the impetus for much of the criminally deviant sexual offenders is pornography. Prison used to be a place you did not want to go. Now that the reformative criminal justice system has been denigrated to a weekend holding pen with all the comforts of home, literally, I think I am going to go rob the liquor store down the street to take an extended vacation.

Reflecting on Pop Culture

On Friday Night I took some time off to watch Crash. The movie takes every-day situations and examines how the race card seems to bring out the worst in even the most enlightened. The film then juxtaposes these scenes with depictions of the same characters acting out of character, as if to demonstrate that at some point we cease to see color and join the human race. What was most interesting to me, though, was the cast. Ludacris, a well known figure in rap music, played a car jacker content on musing the racial stereotypes that permeate society. Its also interesting that Ludacris is responsible for music that frequently employ these stereotypes as the central theme.

From casting to plot, the movie demonstrates a disturbing problem in society. We can't see past color lines. Anyone who watches a major network newscast can see that plain as day. Even in the worst situations it seems as though we are locked into this anachronistic view of social stratification along lines of color. When are we going to realize that the we are all just human, regardless of color? Unfortunately, it will take more than a conscious effort, we need to change the way we see race roles in our culture. As free as we may be, as free as we may be we can't escape the illogical barriers set by misinformed conceptions of the state of the world. Maybe we need to fix our perspective first, then our problems, and once we all reach equal footing, the lines will disappear.

Only Slightly Better Off...

Apparently, we are loosing the battle with terrorism. A big wig at MI5, the British Intelligence Agency, stated that in order to prevent terrorist attacks it may be necessary to erode civil liberties. This sounds more like a willingness to sacrifice freedoms guaranteed by our societal construct. Ultimately, we loose the inherent values that make our type of society free. If that is the case, then the terrorists have one.

They win because they have managed to alter our society on a level that compromises the policies set in place by its founders to preserve our freedom. If you think that is not the case then you should read the Patriot Act again. Terrorism aims to destroy the things that make liberated society what it is. Relaxing restrictions on search and seizure or free speech mean that society has become less than what it should be, and we have forfeited the fundamental tenants of liberty. Ergo, the terrorists win.

As Americans, we need to assure that doesn't happen.

Government and File Format, A New Look At Patents

Recently, Massachusetts announced that it will move to what are known as Open Source file formats for all documents filed in the state. These formats were pioneered by the group behind the OpenOffice.Org software bundle, an office suite designed under a type of freeware license. While OpenOffice remains light years behind the development of other office suites like MS Word or Corel Word Perfect, it does support a newer form of dynamic file format based on XML.

Interestingly, the article cites concerns over the security of Microsoft's XML file format, and preventing patent infringement. Ideally, this move would allow the use of more ubiquitous formats and release Microsoft's strangle hold on the software market in state government.

This movement could turn the tide and bring open source software to the forefront of consideration for general use application. Fundamentally, Open Source projects could shift the market to focus on programming and pricing that benefits the end user instead of continuing to severely limit the ownership rights of individual end-users. We will just have to wait and see.

So Much For Hacking...

Engadget is running a story about the release of the new blue-ray dvd systems. Apparently, the new players will let the manufacturer know when someone has hacked the machine. Essentially, whenever the player is doing something its not supposed to be doing, its been hacked.

There are a lot of different hackers in the world. Most are your basic tinerkers who are just out to modify existing store bought hardware to do something that fits their needs more, or take something and make it do something its not supposed to do. These are not the malicious hackers who spread viruses and hack mainframes to get at personal information. This is your average everyman who likes to play with technology.

Unfortunately, the technology industry is out to vilifiy every hacker. The purpose is to protect their intelectual property rights. Granted, ownership interests are important, but hacking in the normal sense means that they have to buy the technology first. The manufacturers make money, and the end user gets to have their fun. Why take it out on the guy who is just trying to make the technology better? Why not just sue him after he really has broken a patent or violated a copyright? Whats worse, an individual hacker won't destroy the international profit of the manufacturer.

The tech companies need to lay off. This behavior only serves to destroy inginuity inherent in our drive to create.

Rebalancing the Court

I found out this morning that Chief Justice Rehnquist died last night. For Many in America, this news means little. For those watching the goings on of the Court, Rehnquist's death was not unexpected. The Chief Justice has been suffering from a debilitating form of Thyroid cancer. The survival rate of this particular type of cancer is very low. Add to that Rehnquist's age, and all the signs pointed to the end of the Rehnquist Court.

Unfortunately, his death, while Congress is on their summer recess creates political concerns. First, who will be come the new Chief Justice. While the decision is up to the President, those in the running include Scalia, Thomas, and Kennedy. While Thomas is the second lowest in the pecking order, his conservative bent satisfies the President's ideology. Scalia, now one of the ranking members of the Court, shares this ideology. Kennedy, on of the most liberal Justices, will most likely not really be in contention.

In terms of affecting the balance of the Court, the Chief Justice does little. It seems its predominantly a procedural position. Politically, though, a conservative appointment to Chief Justice may allow the President to appoint another swing moderate like former Justice Sandra Day O'Connor.

Regardless, replacing two seats on the bench in an already charged political stage may do good and harm. John Roberts' confirmation may become easier to digest if the President decides to appoint a more controversial candidate. This will definitely be an interesting Congressional term leading up to the Christmas recess.

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.

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.

Assaulting Our Rights...

A story that ran across the AP last week on Wednesday night did more than disturb me. The several hour long diatribe, several irate phone conversations, and two letters I sent to Illinois representatives in Congress are a strong indication that HR J 10 was more than a mere thorn in my legally minded side. Joint House Resolution 10 proposes a Constitutional amendment that gives Congress the power to ban flag desecration. For all of you like-minded First Amendment supporters out there, say good-bye to the protections of Texas v. Johnson.

I will preface this with a little history. Prior to 1989, 48 states and the federal government had flag desecration statutes on the books. In 1989, the Supreme Court heard what would become a landmark case, Texas v. Johnson. Police arrested the defendant, Johnson, for flag desecration after he burned a flag while protesting a political convention. Johnson argued in his defense that the flag desecration statute unconstitutionally abridged his freedom of speech. The Supreme Court decided in Johnson's favor in 1989, and the decision subsequently abolished the 49 laws proscribing flag desecration.

This particular amendment to the Constitution aims to take the power away from the Supreme Court by preventing them from being able to render such statutes violative of the Constitution. While not technically an amendment to the First Amendment, the new amendment would create a damaging precedent much like a constitutional definition of marriage.

The First Amendment aimed to embody the founding fathers' opposition to oppressive practices in England in the late 18th Century. At that point, the Monarchy declared a state religion and prevented any negative press about the royal family. These policies led the drafters of the Constitution to state with specificity, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press." Const. Amend 1. Therefore, the purpose of the First Amendment is to preserve the right of the people to speak in whatever reasonable manner the people see fit.

Though Congress doesn't feel that burning a flag constitutes reasonable speech, it’s important to note that such an expression is a fundamental act of speech, intended to convey a message of vehement distaste with the actions of the government. Ideally, burning a flag symbolizes the utter disgust with the state of the nation. While the purpose of the First Amendment aims to protect political speech, this amendment would only further an oppressive approach to the most fundamental of our civil rights. The rationalization for the amendment is a strong indication of this negative reaction to speech critical of the American government.

Various news agencies quoted house republicans as saying the purpose of this amendment is to allow protection of the symbol of American Patriotism or the American ideal. Essentially, this amendment aims to imbue the flag with pro-government sentiment and restrict its use for displays of patriotism and pledges of support for the actions of the Government. By imbuing the flag with these characteristics, the amendment prevents the use of the flag for speech demonstrating negative opinions about the government. Furthermore, the notion that protecting the flag is necessary to foster patriotism is utterly absurd.

If patriotism is nothing more than our flying of the flag, our nation is in grave danger. The concept of the American ideal is embodied in the way we, as citizens, choose to lead their lives. There is no more fundamental display of those ideals than political discourse itself. Furthermore, denigrating our national ideology into something corporeal makes the ideology as fragile as that corporeal object. It is too easy to destroy an object; the fundamental ideas upon which this nation was created are some thing far greater than sewn cloth. The notion that something corporeal that represents our ideals needs greater protection than the ideals themselves is even more repugnant.

It’s the ideals that need protecting, not the representation of those ideals. Protecting the representation detracts from the meaning of the ideology, relegating our reverence for government to nothing more than obedience. Some say that desecrating a flag is un-American. To those I say allowing this attack on the most fundamental of rights, upon which this nation was founded, is equally un-American. What is at stake here is not simply the destruction of the flag, but our ability to speak freely. Weighed in the balance of justice, the freedom to speak should always win.

Distrubing yet far from unnoticed

I am disturbed by the apathy of students recently graduating from high school and college. We are the generation that can change the world, the ones who will solve the problems plaguing the world society. With the baby boomers on the way out, it is up to the leaders of tomorrow to step up and take responsibility for the future. Instead, the apathetic youth prefer to drown the seemingly hopeless event horizon of adulthood in a purple haze of ambivalence.

Losing the guiding light of social change is only one problem. Social decay should qualify as a concern equal to that of anyone who ponders what is to come. Apathy breeds loathing and thoughts of worthlessness. The seeds of doubt germinate and sprout an entire generation of individuals willing to accept things the way they are regardless of how bad things get. We are caught in the downward spiral because we are socialized to be mediocre. With our idols pluming the depths of rampant stupidity with the likes of Johnny Knoxville and pulse with the somber self-hate of lost pain through the eyes of Kurt Cobain, it is no wonder we have been set-up to accept disappointment and attempt to find solace in the inner sanctum of the acceptance inherent in apathetic views on life.

We need to wake up and realize that the everyman that can make a difference. The revelation that it is the many that makes up the body politic. Without speaking of the abstract greater good, we need to realize that the only way to rectify our current situation is to break free of the shackles of self-doubt, embrace our civic duty, and make a stand for what we believe is right. Regardless of which side of the fence you fall, participation is the only way to ensure the proper operation of polity.

Continuing on this path leads us to a world were politics is controlled by the few, the once great American revolutionary spirit has become docile, and were we are easily led like indifferent, faceless automatons. Bleak as it may seem, things can change, but it will take the unity of American society to accomplish the task. Wake up generation X and Y, embrace your potential, change our nation and change the world.

Altering the Balance

This is a column posted from the Grey Area printed in April issue of "The Forum" .


Recently, legislators have begun attacking the creditability of the judiciary. While the legislature has long attempted to control the third branch through constitutionally available means, the tactics have turned specifically toward changes in the law by activist judges.

The pejorative flies around capital hill denigrating the entire judiciary. Attempts by congressional leaders like Tom DeLay and Bill Frist challenge judicial operation in different ways, but the result remains the same.

Representative DeLay’s posthumous probe into the judiciary seeks to change the ethical standards, subjecting judges to more rigorous ethical obligations. One effect of this particular action has been to refocus the Senate ethics committee on the acts of its own constituents.

Conversely, Senator Frist seeks to end all filibusters raised by the Senate minority. The purpose is to end the current struggle over President Bush’s judicial appointees.

Regardless of the method, the concern remains the same. Theoretically, the judicial system operates as a check on the legislative and executive branches. Decisions contrary to the will of Article I and II branches have lead leaders to attempt to determine what check operates on the judicial system.

Though restraints on judicial decisions are not readily apparent, explicit checks on judicial power do exist. First, the systemic organization of the judiciary limits ability to review legislation because of its retrospective nature.

Second, legislators have the option of creating laws that overturn judicial decision.

Third, after the Marbury v. Madison decision, the role of the courts is limited to review of the laws and mandates by Congress and the President to determine if those decrees conform to the Constitution. 5 U.S. 137, 138 (1803).

While these three principals confine the ability of the courts to create law, the grey area provides wide latitude for the court to determine what fits within the ambit of the constitution. Fears of abuse of power are unwarranted here. The appeals process provides stability and balance within the system.

Further constraints placed on the judiciary will limit the power and purpose of Article III. These limitations will break down the current balance providing uncheckable power to the other two branches. In order to preserve the façade of independence in the judicial branch, it must operate without further checks aimed at freeing up power in the other two branches. The equilibrium established by the founding fathers has lasted for over two hundred year, alerting that balance in underhanded and arbitrary ways to mold decisions of the court would pervert the purpose and debase the Constitution.

::Update::

Bipartisan Congress has reached a settlment to avoid the so-called nuclear option that would amend congressional rules that would abolish the filibuster. As voters, we should be concerned that the majority in Congress is so willing to destroy the delicate balance the filibuster provides between the minority and majority. Standing on party lines remains the most dangerous part of the legislative process. Unless both sides focus on what is good for the people, not their campaign boosters, the dichotomy of bipartisanism will tear legislative government apart.

Genesis...

The Grey Area came from a column I have in the student news paper while a student at the Valparaiso University School of Law. The Grey Area aimed to contemplate legal and social issues at the forefront of current events or social conscious. The Blogger version of the Grey Area aims to do the same, but with more frequency. As I write this, I will continue to pen the pages of "The Forum" (the VUSL student newspaper) with the the same prose that fills these pages. Similarly, the monthly installment of the Grey Area appearing in "The Forum" will be posted here.

I want to provoke conversation. I want to tackle tough issues, and at times the best way to do so is to play devil's advocate. As a student of the law, another goal is to utilize the vastness of the internet as a medium for Constitutionally protected discourse. Enjoy, make comments, get pissed off, write your congressman or the President, only the people in a democracy can effectuate change.