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.