Friends, Romans, Republicans:


Welcome to the Granick Slate Card for the November 6, 2012 National Election.  I missed the last opportunity to opine on all things voting because I didn’t have the time to do the kind of analysis I like.  This year is no different, but rather than sitting out, I’ll just be terse, under the theory that one should not let the perfect be the enemy of the Done. So, without further ado, the picks.




Barack Obama: On the issues that are closest to my professional heart — government surveillance and due process – Barack Obama has been just awful.  But I will be volunteering to call voters to get out the vote and I will be voting for him. I’ve come to see that this is no time for complacency, even if your support is lukewarm.  Romney is a disastrous liar and the Republicans are horrific on women’s rights.




Proposition 30. YES

Temporary Taxes to Fund Education. Guaranteed Local Public Safety Funding — State of California (Initiative Constitutional Amendment – Majority Approval Required)


Should the California Constitution be amended to (a) temporarily increase sales and personal income tax rates; (b) guarantee certain revenue transfers to local governments; and (c) eliminate state funding of certain mandates to local governments?


If this doesn’t pass, we will have three less weeks of public school next year.


Proposition 31. NO


State Budget. State and Local Government — State of California (Initiative Constitutional Amendment and Statute – Majority Approval Required)

Should the state constitution and law be amended to require government performance reviews and two-year budget cycles, to prohibit the Legislature from creating certain expenditures unless offsetting revenues or spending cuts are identified, and to make changes in certain responsibilities of local government, the Legislature and the Governor?

Proposition 32. NO!!


Political Contributions by Payroll Deduction. Contributions to Candidates — State of California (Initiative Statute – Majority Approval Required)


Should unions, corporations, government contractors and state and local government employers be prohibited from using payroll-deducted funds, or in some instances their own funds, for political expenditures?


This is an effort to hobble organized labor and other left-associated forces from participating in government.


Proposition 33. NO


Auto Insurance Companies. Prices Based on Driver’s History of Insurance Coverage — State of California (Initiative Statute – Majority Approval Required)

Should automobile insurance companies be permitted to offer a discount to drivers who have continuously maintained their insurance coverage, even if they change their insurance company?


We voted against this before, in June of 2010. Its mostly funded by insurance companies that want more flexibility in pricing.


Proposition 34. YES

Death Penalty — State of California (Initiative Statute – Majority Approval Required)

Should the death penalty be repealed and replaced with life imprisonment without possibility of parole when someone is convicted of murder with specified special circumstances?


It’s the moral thing to do, and the money saved will go to solving otherwise unsolved murders and rapes.


Proposition 35. NO


Human Trafficking. Penalties — State of California (Initiative Statute – Majority Approval Required)


Should the definition of human trafficking be expanded, penalties for traffickers be increased, convicted sexual traffickers be required to register as sex offenders, and additional training for law enforcement officers be required?


There’s no need to expand the definition of these crimes.



Proposition 36. YES


Three Strikes Law. Repeat Felony Offenders. Penalties — State of California (Initiative Statute – Majority Approval Required)

Should California law be amended to provide that a life sentence should not be imposed for a third felony conviction unless the third conviction is for a serious or violent felony?


Right now, we incarcerate people for life for stealing and other non-serious felonies.  This would fix that.


Proposition 37. YES


Genetically Engineered Foods. Labeling — State of California (Initiative Statute – Majority Approval Required)

Should labeling be required on foods containing genetically modified ingredients when such foods (whether raw or processed, plant or animal) are offered for sale to consumers in California?


We have a right to know


Proposition 38. NO


Tax to Fund Education and Early Childhood Programs — State of California (Initiative Statute – Majority Approval Required)

Should California’s personal income tax rates be increased during 2013-24 to provide funds for public schools, early childhood education programs, and state debt payments?


This is a sloppy measure put on the ballot to interfere with Prop 30, on which you should vote yes.  If both pass, the one with the most votes wins, so make sure to vote no here.


Proposition 39. YES


Tax Treatment for Multistate Businesses. Clean Energy and Energy Efficiency Funding — State of California (Initiative Statute – Majority Approval Required)

Should the California tax code be changed to require multistate firms to pay income taxes based on a percentage of their sales in California, with roughly half of the resulting tax increase to be used to fund clean/efficient energy projects for five years?


This would incentive businesses to locate in and bring jobs to California, as currently companies locate outside the state to avoid the in-state California tax. Half of money goes to renewable energy for 5 years, expected to raise $1B/year.


Proposition 40. YES


Redistricting. State Senate Districts — State of California (Referendum – Majority Approval Required)

Should the current state Senate districts be retained?


A yes doesn’t change anything



San Francisco Propositions:


Proposition A. NO


City College is mismanaged, it doesn’t need more money now. It needs to be fixed first.


City College Parcel Tax — San Francisco County (Parcel Tax – 2/3 Approval Required)

To provide City College of San Francisco with funds the State cannot take away; offset budget cuts; prevent layoffs; provide an affordable, quality education for students; maintain essential courses including, but not limited to, writing, math, science, and other general education; prepare students for four-year universities; provide workforce training including, but not limited to, nursing, engineering, technology, and business; and keep college libraries, student support services, and other instructional support open and up to date; shall the San Francisco Community College District levy 79 dollars per parcel annually for eight years requiring independent audits and citizen oversight?


Proposition B. YES


Clean and Safe Neighborhood Parks Bond — San Francisco County (Bond – 2/3 Approval Required)

SAN FRANCISCO CLEAN AND SAFE NEIGHBORHOOD PARKS BOND, To improve the safety and quality of neighborhood parks across the city and waterfront open spaces, enhance water quality and clean up environmental contamination along the Bay, replace unsafe playgrounds, fix restrooms, improve access for the disabled, and ensure the seismic safety of park and recreation facilities, shall the City and County of San Francisco issue $195 million dollars in General Obligation bonds, subject to independent oversight and regular audits?


Proposition C. YES


Housing Trust Fund — San Francisco County (Charter Amendment – Majority Approval Required)

Shall the City amend its Charter to: create a Housing Trust Fund that supports affordable housing for low-income and moderate-income households; and change the affordable housing requirements imposed on some private residential developments?


This will direct SF money previously allocated to affordable housing via the state Redevelopment Agency to that same worthy purpose, with more help for middle income families and additional flexibility for developers.




Proposition D. YES


Consolidating Odd-Year Municipal Elections — San Francisco County (Charter Amendment – Majority Approval Required)

Shall the City amend its Charter to change the election cycle for City Attorney and Treasurer so that these officers would be elected at the same time as the Mayor, Sheriff and District Attorney?


Less elections


Proposition E. YES


Gross Receipts Tax — San Francisco County (Ordinance – Majority Approval Required)

Shall the City: create a gross receipts tax designed to eliminate or reduce the tax on payroll costs; and increase business registration fees?


Keeps startups here, though it won’t encourage established businesses to move here from the ‘burbs.


Proposition F. NO


Water and Environment Plan — San Francisco County (Ordinance – Majority Approval Required)

Shall the City prepare a two-phase plan that evaluates how to drain the Hetch Hetchy Reservoir so that it can be restored by the National Park Service and identifies replacement water and power sources?


$8M for a study that is step one is draining Hetch Hetchy, the marvelous source of our pristine drinking water, brought to the City by gravity, without need for (polluting) electricity or filtration.


Proposition G. I don’t vote on these non-binding things, especially because they are woefully ignorant.  The same theories that give us corporate personhood give us First Amendment rights for unions and NGOs.  When you figure out how to parse that under our law, I’ll read your ballot measure.  Until then, you are wasting trees.


Policy Opposing Corporate Personhood — San Francisco County (Declaration of Policy – Majority Approval Required)

Shall it be City policy that corporations should not have the same constitutional rights as human beings and should be subject to political spending limits?




Sorry I didn’t do picks for School Board or Community College Board.  I did some research and realized that it was hard.  For School Board, I’ll be voting the Chron/Guardian overlap, which is Fewer, Wynns and Walton.




SF Chronicle: http://www.sfgate.com/endorsements/


Bay Guardian: http://www.sfbg.com/endorsements2012


That all, Race Fans!  See you at the ballot box.














President: Obama



Statewide San Francisco
Prop 30: Yes Prop A: No
Prop 31: No Prop B: Yes
Prop 32: No Prop C: Yes
Prop 33: No Prop D: Yes
Prop 34: YES Prop E: Yes
Prop 35: No Prop F: No
Prop 36: Yes Prop G: blather blather
Prop 37: Yes  
Prop 38: No  
Prop 39: Yes  
Prop 40: Yes  






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lists.granick.com/listinfo.cgi/slatecard-granick.com.  The Granick

Slate Card issues before (almost) every California election and may be copied and freely shared for any non-commercial purpose, with author attribution.  Derivative works need not make any attribution.


For you political junkies out there, this movie is not to be missed — Boogie Man: The Lee Atwater Story

Boogie Man

I’m not just saying this because our friend Stefan Forbes made it. Read for yourself, and maybe we’ll see you at the theater:




[To subscribe to the Granick Slate Card, visit here. The Granick
Slate Card issues before every California election and may be copied and freely shared for any non-commercial purpose, with author attribution. Derivative works need not make any attribution.]

Friends, Romans, Republicans:

Welcome to the Granick Slate Card for the February 5, 2008 primary balloting. This is one of the most exciting elections in recent memory for Democrats. We have two great frontrunner candidates for President. Either would be a satisfying relief from eight years of Bush Administration lies and manipulation. Either would be history-making. We also have a smattering of arcane Propositions to weigh in on, so lets get started.

First, the additional resources:

SF Chronicle Endorsements

SF Bay Guardian Endorsements

Find your ballot and polling place

President of the United States, Democratic Party: Hillary Clinton

A voter looks for many ineffable qualities when searching for a President. Especially in this race, where the lead candidates basically agree on policy, people are voting on gut instinct. No one can reason with your gut, and mine leans towards Clinton. I will, however, try to explain why.

For me, effectiveness matters the most. I believe that our governmental system is broken, but that there’s room to get some good things done, and an imperative need to undo decisions made by the Bush Administration. I believe that wonky, arcane political decisions greatly impact our lives and the lives of people around the world. I believe that experience and information are greater factors in getting results than vision. I am not an idealist when it comes to federal government.

This is why I will vote for Clinton. About a year ago, this article in the New Yorker tilted me towards her.

The part that made the most impact on me is near the top of the third page:

In one conversation, I asked her whether she believed that the best antidote to Islamism might be Islamism itself—in other words, for Muslims to experience periods of Islamist rule to fully grasp its flaws. “Well, I don’t see any evidence of that,” she said. “You know, if you look around the world, Islamists have had to be defeated by internal military forces, in such places as Algeria and the Philippines, or by external military forces, in places like Afghanistan. We want to be able to continue to export democracy, but we want to deliver it in digestible packages. We want to be smart about this. Take the Palestinians, where we had an election. Don’t you think it would have been smart to make sure that the election was run in such a way that everyone knew how to compete? Hamas certainly knew how to compete. They ran a modern election. They knew enough to run only one person in each constituency, unlike Fatah, which we apparently didn’t tell. Hamas had a cell-phone system to get everyone to the polls. It’s not enough to say, ‘Let’s have an election.’ If you’re going to do it and install democracy, democracy means rule of law, it means democracy education, democracy means opening up the media.”

She went on, “That’s what we did during the Cold War. We had a multi-pronged agenda against Communism and the Soviet Union, we worked with candidates and parties in Europe, we worked to persuade people to be part of our alliance, we used every tool at our disposal.” Clinton seemed just moments away from naming individual Hamas precinct captains.

To my mind, the President will require this level of historical knowledge to deal with the problem of pulling out of Iraq safely, of restoring confidence (if not rationality) in our economy, of reversing eight years of Bush policies and practices. Clinton is the candidate with that perspective and experience.

Most of the people I know are supporters of Barack Obama. He’s an exciting candidate and one I would be proud to have as our President. Inspiration, both home and abroad, is sorely needed. [Process note: This is probably Clinton’s biggest problem. Her supporters have no problem with the opposition, they just think she will do a better job.] As a result, I have heard and sympathize with most of the arguments on his behalf. There are just two I want to address here; the question of which candidate is more likely to win the election (presumably against John McCain) and the question of her campaign tactics revealing an inclination to win at the cost of betraying one’s principles.

I believe McCain is the only Republican who could beat either Obama or Clinton, so pragmatism is a concern. Still, its sad that for once when we have two good candidates to choose from, we fall into the old habit of letting notions of “electability” overshadow “suitability”. Clinton challenges McCain on his home turf: experience and conduct of the war. Greater exposure is unlikely to win Clinton more allies. People seem to accept her or dislike her. I’m not sure McCain will fare any better under the microscope. Obama offers a different narrative, that would a starker choice between the Democrats and the Republicans. But to win he would need to prove to voters that he knows what to do in Iraq, how to deal with Iran, etc. Electability is quicksand. I don’t think we can really predict now what the zeitgeist will be at election time. For example, who would have thought that Bill Clinton would be Hillary Clinton’s greatest problem?

Which brings me to the second question. I’m not sure what the Clintons did to alienate so many of my friends, and most of them aren’t sure either. But the press has been going nuts with the ugly campaigning = unfit candidate meme. For example, in a column last week, NY Times columnist Bob Herbert offered two examples of Clinton surrogates “playing the race card” and the religion card too.

For example:

Here’s what Mr. Young, who is black and a former ambassador to the United Nations, had to say last month in an interview posted online: “Bill is every bit as black as Barack. He’s probably gone with more black women than Barack.”

That’s ribald and a bit stomach-churning, but surely can’t be what the Clinton camp hoped Young would say in support of Hillary’s candidacy. Let’s assume Clinton plays rough. She wants to win and she’s playing the election game the way its always been played. Its exactly because Hillary understands the game that I support her. People find it strident or unbecoming, but I think that has the whiff of sexism about it. Besides, recent events show Obama isn’t above taking the gloves off, nor should he be.

In sum, George Packer well summarizes my feelings about the two candidates.

Obama offers himself as a catalyst by which disenchanted Americans can overcome two decades of vicious partisanship, energize our democracy, and restore faith in government. Clinton presents politics as the art of the possible, with change coming incrementally through good governance, a skill that she has honed in her career as advocate, First Lady, and senator.

I want Obama, but I think we need Clinton.

State Propositions

Prop 91: Transportation Funds – No

This earmarks motor vehicle taxes for transportation improvements. As it turns out, we already passed this in 2006 as Prop 1A, but for some reason the proponents submitted the same measure to this ballot and were not able to withdraw it. Even the proponents recommend a no vote.

Prop 92: Earmark for Community College – No

I believe that one of the biggest obstacles to good governance in California is that so little of the budget is discretionary. About 90% of revenues are earmarked and pre-allocated, and this Proposition would be more of the same. Community College is really important, but so are other government services. This Proposition would lock us in to tuition rates and expenditures regardless of changed circumstances.

Prop 93: Term Limits – Yes

While this is marketed as a term limit proposition, it actually softens a rather draconian aspect of current law.

Today, legislators are limited to 14 years: six in the Assembly, eight in the Senate. Proposition 93 would reduce the lifetime limit to 12 years, but allow a legislator to serve it in a single house. This helps keep good people in government because what happens now is that when assembly members are termed out, they run for Senate, but often there are several assembly seats in a single Senate district, so former colleagues are forced to run against each other, and when they lose, leave government. Prop 93 fixes this problem.

A reason to oppose is that the prop includes a “transition period” to save the bacon of several sitting legislators, including Nunez and Perata, who would otherwise be termed out. This self-serving point would bother me more if I supported term limits in the first place, but I don’t. If you want to limit your legislators stay in government, you should simply vote for someone else.

Props 94- 97: Gambling Compacts – No

A yes vote approves agreements between the state and several tribes to allow increases in the number of slot machines at various casinos in exchange for an increase in tax revenue to the state. These deals are opposed by labor and environmentalists. The state has limited power to audit the slot machines and there’s a real question as to the amount of money we might take in. I think a reason to vote for these propositions is to reject the messed up proposition process as a whole. After all, we hire our elected representatives to figure these things out without us, but I suppose that given a chance to reject a bad deal, we might as well take it.

San Francisco Ballot Measures

Prop A: Bonds for Parks: Yes

Parks are important and I approve of bonds (borrowing) for infrastructure improvements.

Prop B: Police Retirement: Yes

This allows police officers at retirement age to stay for an extra three years and still contribute to their pension fund. If we can encourage seasoned police officers to stay on the job, why not?

Prop C: Global Peace Center: No

Should the city “explore” acquiring Alcatraz Island to tear down the prison and build a geodesic peace center? No, let’s not explore it. In fact, let’s never mention it again.

Unfortunately, I haven’t been keeping this site up to date as I’ve been blogging on the Stanford Law School Center for Internet and Society site.  To that end, here are my most recent posts:

The Unintended Consequences of CISPA

New Cybersecurity Bill Available

Revised Cybersecurity Act Needs Amendments for Privacy, Security

Thanks for following along.

While I was looking away, the odometer on The Shout rolled over 100,000. Hooray!
This week on Wired News, I write about leaking secrets and jailing reporters in my Circuit Court column Love the Leak, Hate the Leaker?.

Stop the spying, say Izzy and Callie

A picture is worth a thousand words. Take a photo and tell Congress how you feel about letting the telcos off the hook for breaking the law and spying on your phone calls and emails. See what others have said.

SlateCardNov07 (pdf)

The Granick Slate Card is now available for this upcoming Tuesday’s election here in San Francisco. Download and remember to vote early and often.




Friends, Romans, Republicans:

Welcome to the Granick Slate Card for the November 6, 2007 San Francisco citywide election. What, there’s an election? Yes! And even though none of the officeholder races are competitive, there’s still a whole mess of ballot measures and a fantastic assortment of mayoral candidates to consider. So, let’s get started.

Mayor: Gavin Newsom

In what other city would you have a nudist activist, a homeless cabdriver and an anarchist blogger running for Mayor in a field of 18? Its amusing, but where where these people when we held elections for the more mundane office of Supervisor? That’s where people learn about the business of running a city and about the issues confronting its citizens. Of course, its more fun to run for a big fancy office like Mayor, and boy howdy do you get a lot of attention. But I wouldn’t waste even a protest vote on a candidate who doesn’t have a real commitment to city government. Lots of people have an issue or two they care about, but the city has a lot of issues, and the mayor has to care about, and know how to do something about, pretty much every one. If for some reason you hate Newsom, serious people, if not serious candidates, worth mentioning include Quintin Mecke. He has never held elective office, but at least he runs a non-profit that fights crime and violence on city streets. Dr. Ahimsa Sumchai is also a serious person running on an important issue, environmental waste and dangerous pollution in Hunter’s Point.

You can read the paper for biographies of the rest of the personalities running for mayor, and feel proud that they reflect the diversity of psychological health in San Francisco, but in the end, Newsom will win. His approval rating is around 70%, and that’s after fucking his friend’s wife, also his employee, admitting a drinking problem, and sticking with a girlfriend who has to have the worst judgment, grammar and capitalization abilities any graduate of Stanford University has ever displayed.

District Attorney: Kamala Harris: She’s running unopposed.

Sheriff: Mike Hennessey: He does a great job running our chronically overcrowded jails and providing programs for the sentenced population. I’m always proud to vote for Hennessey.


Prop A: Muni Reform: Yes

Gives $26 million per year to Muni and creates a single agency for all transportation issues, including cars, bikes and public transit.

Prop B: Commission Holdovers: Yes

Right now, a city commission appointee serves until her term expires, which gives her some independence. However, if the mayor does not officially reappoint or replace her, she serves in limbo at the mayor’s behest until he does something about it. B limits the length of limbo to 90 days. This way, instead of having people end up serving at the mayor’s whim, we preserve their independence by assuring them an official appointment of a specified term of years.

Prop C: Public Hearings for Ballot Measures: Yes

C requires supervisors and the mayor to hold a public hearing 45 days before putting any measure on the ballot. This would end last-minute legislation laundered through the referendum process without public debate or constitutionality review. A public hearing for those who care about and are impacted by the measure is far more democratic than tossing things on the ballot at the last minute and seeing who will vote for it without the benefit of that vetting.

Prop D: Library money: No

Libraries are important parts of our public infrastructure. In recognition of this, a Library Preservation Fund was established in 1994 to ensure a certain level of funding for libraries. The Fund is due to expire next year, and this would extend it for 15 more years, but with some important changes. The 1994 funds were earmarked for operations – increasing hours and acquiring books. The new Fund would allow expenditures and procedural short cuts for issuing bonds for “any lawful purpose of the Library Department” including construction and related equipment. That means less money for hours and books, as well as an increase in bond expenditures without the usual public oversight. I would vote yes for something that just continues the current Fund as is, and we have time for that law to pass before expiration.

Prop E: Mayoral presence at Board of Supervisors meetings: No

This is a recap of Prop I from last election, which requested that the mayor to appear once a month at a Board of Supervisors meeting to answer questions, like in the U.K. The measure passed, but apparently Newsom won’t come to the meetings. So Prop E would make it mandatory. I’m willing to let the mayor decide what would be a productive expenditure of his time, and not micromanage him so that some supervisors can publicly showcase their disagreements with Newsom. The man has hardly made himself unavailable, giving full unedited interviews to local newspapers, meeting regularly with community groups and the like.

Prop F: Police Pensions: Yes

This would give airport cops, who are now part of the SFPD, the same pension rights as the rest of the force. What do you have against airports?

Prop G: Golden Gate Park Stables: No

Prop G would create a special fund for the renovation of the historic (and dilapidated) horse stables in Golden Gate Park. The city would match every $3 in private donations with $1 in public money, up to a total of $750,000. I like saving the quirky old things that make San Francisco special. However, I don’t like budgeting by the ballot, because we don’t know what other things we might want or need on which this money could be spent. Apparently, the Board of Supervisors considered this budget allocation and rejected it on the grounds that the city had other important expenses. I can’t vote yes for this unless I know that I disagree with that assessment, and I don’t. This is why we elect people to set the city budget. We can’t do it piecemeal by voting for every cool thing that comes along.

Prop H: More New Parking Spaces: No

This would remove limits on the number of parking spaces and lots developers can create as they build more housing. More parking means less housing, more cars, more congestion. Its nice to have parking, but that’s why they call it the suburbs. San Francisco doesn’t need big parking lots in China Basin or SOMA. It needs better public transit and more affordable housing. So vote no.

Prop I: Office of Small Business: Yes

Prop I would allocate $750,000 to set up an Office of Small Business to help mom and pop shops with regulations, permitting etc. The funding would be for one year only, so we can see if its worthwhile. Small business is the backbone of any vibrant city, and meeting all our regulations can be difficult for people who just want to run a restaurant or a shoe repair shop. In truth, our current bureaucracy should be able to do this for people, but its one year and it could be a good model for fixing the existing office. Vote no if you believe government inertia means we’ll be stuck with this office from now on regardless of whether it works or its functions could be performed by an existing agency.

Prop J: Public/Private Partnership for Free Wireless: No

There are more factors that go into a good public wireless service than free. There’s private. There’s fast. There’s accessible. There’s limited advertising. Some of these things are more likely to come from a municipal wireless service rather than a public-private partnership. So let’s evaluate available wireless proposals and consider cost as part of a bigger package.

Prop K: Street Ads: No

Prop K is a policy statement that the city should reject more street-furniture advertising deals. I hate covering everything with ads. But sometimes we need money for something and ads are a good way to pay for it that doesn’t involve entrance fees or tax expenditures. (Muni wireless may be one of these things). Any ads should be limited and tasteful. But we should never say never as a matter of policy in a vacuum.

That’s all for this election, race fans. See you again for the Primaries in February.



Mayor: Gavin Newsom

District Attorney: Kamala Harris

Sheriff: Mike Hennessey

Prop A: Muni Reform: Yes

Prop B: Commission Holdovers: Yes

Prop C: Public Hearings for Ballot Measures: Yes

Prop D: Library money: No

Prop E: Mayoral presence at Board of Supervisors meetings: No

Prop F: Police Pensions: Yes

Prop G: Golden Gate Park Stables: No

Prop H: More New Parking Spaces: No

Prop I: Office of Small Business: Yes

Prop J: Public/Private Partnership for Free Wireless: No

Prop K: Street Ads: No

In this week’s Circuit Court column, I write about the legislative battle over changing our communications eavesdropping laws and a related issue of giving telcos immunity for illegally helping the government surveil us. This issue is so important, now that the nominee for Attorney General, Judge Michael Mukasey, says that the President does not have to obey the law if he believes it contradicts his national security responsibilities. Of course, you could argue that the laws are actually less important if the President isn’t even going to follow them. However, if that’s true, lawsuits against telcos may be the only way for the public to find out what our government is actually doing. Read more about one possible future of freedom and privacy here: What’s at Stake in the Surveillance Debate in Congress

Proposed Reporters’ Shield Law Overdue but Underpowered

This week’s Circuit Court column is about the proposed federal reporters’ shield law that just came out of the Senate Judiciary Committee. While we need a shield law, this one has a loophole for situations where the leak is criminal or tortious activity, and the loophole may just be too large for this version of a shield to do the trick.

I hope that First Amendment and reporters’ rights groups will be able to address this intelligently before consensus forms around final language for the bill. Its very easy to get caught up in the “you’re protecting criminals” rhetoric, particularly when a lot of business interests have formed a coalition to kill the bill entirely. However, the current version of the bill probably would not protect reporters even in the circumstances which have led Congress to propose this legislation in the first place. Read more here.

Cellphone users try to wrest some of carriers control – The Boston Globe

I’m quoted in this story about cell phone companies efforts to keep their customers from switching services or buying unaffiliated hardware or ringtones. My quote sounds pretty awkward, but if you want to read more about this, you can check out our (successful) filing with the Copyright Office about cell phone unlocking.

News: In a great article (download here (pdf) —I’m asking for permission to post in full reproduced by permission of Warren Communications News, www.warren-news.com, 800-771-9202) by Louis Trager for Communications Daily, Tracfone is claiming that I received personal favoritism from the Copyright Office. I. Received FAVORITISM. From the COPYRIGHT OFFICE! Stop laughing and keep reading.

Background: Every three years, the Copyright Office holds a rulemaking for exemptions to the Digital Millennium Copyright Act’s anti-circumvention provisions. The statute prohibits circumventing digital locks that control use of copyrighted works. Intended to stop crackers from cracking DRM on music and movies, phone companies were using the statute to stop people from unlocking cell phones they had purchased so that they could use them on other wireless communications providers’ networks. CIS and the Cyberlaw Clinic applied for an exemption for cell phone unlocking on behalf of an individual and a recycling business, The Wireless Alliance. After a long, hard battle, we won, and our exemption was granted. I wrote two Wired News/Circuit Court columns about unlocking, Free The Cell Phone! and Cell Phones Freed! Poor Suffer?.

Following our win, Tracfone sued the Copyright Office, claiming violations of due process, constitutional separation of powers and the Administrative Procedure Act.

Details: Apparently, at a California State Bar conference, Copyright Office General Counsel David Carson criticized Tracfone for filing its objections seven months after the public comment period had closed, and for failing to provide a satisfactory explanation. TracFone attorney Jim Baldinger lashed out at Carson, and then at me. Here’s the quote from Trager’s article:

Baldinger suggested that the Copyright Office went to unusual lengths to accommodate exemption proponent Jennifer Granick, exec. dir. of Stanford Law School Center for Internet & Society, to the extent of flying out to stage one of 2 hearings in the proceeding at the law school. The other was in D.C. Asked how he reconciled suspicions of favoritism with Carson’s having had nothing good to say about Granick’s boss, Prof. Larry Lessig, Baldinger said he couldn’t: “I don’t understand why the Copyright Office did what it did… I’m shocked by the way the whole thing has transpired.”

The fact is, we beat TracFone fair and square. There’s nothing unusual about the Office flying out for hearings. In the previous rulemaking, they held sessions in Los Angeles and D.C.

And, their late submission was not strategic as a piece of advocacy. TracFone basically proved everything we were saying was true, which was that cell phone locks were “technological protection measures” covered by the anti-circumvention statute, that there was a current risk of harm to unlockers, and that the industry was flat out unable to point to any way in which the exemption would promote copyright infringement, the prevention of which is the point of the statute. TracFone proved for us that they were using the DMCA to protect their prepaid business model, which was not what Congress intended or what the Copyright Office is supposed to promote.

I didn’t need and I didn’t get Copyright Office favoritism. I guess Baldinger can’t imagine that a lone clinical teacher with eight students and a small office in the basement of Stanford Law School could beat his big law firm and rich client. But we did.

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