November 2006


In an interview with Wired News’ Ryan Singel, look I discuss the legal uncertainty Chris Soghoian’s ISP faced after receiving a cease and desist letter from the Transportation Security Administration, over hosting Chris’ Boarding Pass Generator. Read what I had to say on Singel’s blog, 27B Stroke 6. Here’s my choice quote:

[The ISP doesn’t] have any dog in this fight. So if they had to think who would they rather have pissed off at them, the Department of Homeland Security or Chris — I think they know which side their bread is buttered on.

Almost half of the respondents to this totally unscientific poll say their carrier will not unlock their cell phone.

Victory for cell phone users

… in the New York Times is entitled: Wal-Mart Plans to Test Online Films. Congratulations, youth health
Brad!

Victory for cell phone users

The U.S. Copyright Office’s Anticircumvention Rulemaking just came out, anaemia and we won our requested exemption for cell phone unlocking. Hooray! Five other exemptions were also granted. I felt so strongly that our case established a fair use without any corresponding harm to copyright owners, prosthetic that if we didn’t get the exemption, the game was impossible to win. I don’t like to play games I can’t win, so I vowed to quit policy work if we lost. Now I don’t have to! No doubt, the system is still horribly skewed against exemptions. But with this little hit of lawyer crack, I’ll be happily running in the gerbil wheel of futility for a few more years.

Now that my involvement in the case is public, salve
here’s my analysis of the legal claims against Chris Soghoian’s Boarding Pass Generator.

In challenging Chris’ right to put up the boarding pass generator, tadalafil
the government alternately mentioned the statutes listed below.

In other words, for Chris to be in violation of the law, he either had to enter into a secure area of any airport, aid or abet someone else in doing so, or conspire with someone else to do so.

The FBI wanted to know whether Chris had ever used a fake boarding pass, but was most interested in whether Chris had helped bad guys get fake boarding passes. He had done none of these things, and decided to cooperate to put their minds at ease. Attorney Stephen Braga of Baker Botts represented him in these talks and did a wonderful job with a delicate task. I played a supporting role.

Because Chris had never entered into a secure area using a fake boarding pass, the would have to have evidence either that he had an agreement with someone to provide the boarding passes so that they could enter the secured area (conspiracy), or that he intended to help someone do so.

Regarding conspiracy, there was no agreement of any sort. The government recently proved conspiracy against animal rights activists by using evidence of website language supporting illegal acts in protest of inhumane treatment. (Stop Huntingdon Animal Cruelty). The convictions are decried as a violation of the First Amendment, but there were illegal activities, and while the website operators were not directly tied to those activities, the website discussed, lauded and claimed joint responsibility (by using the word “we” with regard to the illegal acts. I have not seen a written opinion on the issue. Nevertheless, Chris’s website had no such language.

The aiding and abetting law is a bit broader, even. The government doesn’t need to show an agreement, just an intent to further someone else’s illegal activity. Intent, as always, is inferred from circumstances. Rarely does the government infer illegal intent from mere publication to the general public, but it happens. For example, some courts have inferred a speaker’s criminal intent from publication to a general audience, as opposed to a co-conspirator or known criminal, if the publisher merely knows that the information will be used as part of a lawless act. United States v. Buttorff, 572 F.2d 619 (8th Cir.), cert. denied, 437 U.S. 906 (1978) [information aiding tax protestors]; United States v. Barnett, 667 F.2d 835 (9th Cir. 1982) [instructions for making PCP]. Both Buttorff and Barnett suggest that the usefulness of the defendant’s information, even if distributed to people with whom the defendant had no prior relationship or agreement, is a potential basis for aiding and abetting liability, despite free speech considerations.

In contrast, in Herceg v. Hustler Magazine, 814 F.2d 1017 (5th Cir. 1987) a magazine was not liable for publishing an article describing autoerotic asphyxiation after a reader followed the instructions and suffocated. The article included details about how the act is performed, the kind of physical pleasure those who engage in it seek to achieve and ten different warnings that the practice is dangerous. The Court held that the article did not encourage imminent illegal action, nor did it incite.

I think Barnett and Buttorff are the very outside limits of where aiding and abetting law meets the First Amendment, and Barnett in particular is wrongly decided.

In any case, there was zero evidence from which you could infer that Chris intended to help bad guys. His intention with website, though irreverent, was crystal clear. He believes the TSA Boarding Pass/ID check is useless for security.

Statutes:

18 USC 2: aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.

18 USC 371: conspiracy

18 USC 1036: entry by false pretenses to secure area of any airport

18UC 1343: wire fraud

18 USC 2318: Trafficking in illicit labels (CR related)

49 USC 46314: Entering aircraft or airport area in violation of security requirements

The U.S. Copyright Office’s Anticircumvention Rulemaking just came out, anaemia and we won our requested exemption for cell phone unlocking. Hooray! Five other exemptions were also granted. I felt so strongly that our case established a fair use without any corresponding harm to copyright owners, prosthetic that if we didn’t get the exemption, the game was impossible to win. I don’t like to play games I can’t win, so I vowed to quit policy work if we lost. Now I don’t have to! No doubt, the system is still horribly skewed against exemptions. But with this little hit of lawyer crack, I’ll be happily running in the gerbil wheel of futility for a few more years.

Benetech is a great company in Palo Alto dedicated to building technologies that help society. They are looking for new employees. Here’s their announcement from President Jim Fructerman’s email newsletter (links are mine):

To accomplish the great things we’ve promised our communities (and our funders!), prosthesis we need help. This kind of help comes in all forms, life but we’re particularly looking for technologists willing to join our team in Palo Alto. Under our new CTO, this Patrick Ball (see my last President’s letter), we are building a tech team to work on our incredibly varied list of projects in literacy, human rights and the environment. If you know some brilliant developers who want to actually get paid to change the world, put them in touch with us.

None of my email about the Second Life column was flamey. CNBC interviewed me about it on the TeeVee yesterday evening. Did anyone see that segment?

In today’s column, diagnosis I write about virtual worlds and copyright. Wired News: Second Life Will Save Copyright. To me, the most interesting aspect of the story is the governance question. How do we chose what rules to impose on new technologies and communities, and what techniques are effective in enforcing those rules? This column is already generating a lot of mail. Later today I might post some of the more flamey for your reading pleasure.

about it 72083-0.html?tw=rss.technology”>Wired News: Let Post-Election Debugging Begin is my column about how the sloppy adoption of new voting technologies threatens the (small “d”) democratic vote.

At the time I wrote this, physician I didn’t know that Former First Daughter Chelsea Clinton, South Carolina Governor Mark Sanford and Ohio Representative Steve Chabot were turned away from the polls. Chabot faced the database problem I discuss in the column, while it appears that Clinton may have been purged from the rolls. The Governor didn’t have the appropriate voter registration card with him, though his wife was heard to remind him that she had told him to take it but he nonetheless failed to do so. Two lessons: One, even if your husband were Governor, his absent-minded disorganization would still drive you nuts. Two, while e-voting problems were not as bad as some had predicted, in squeaker races like we have still pending this morning, every vote makes a difference.

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