I weigh in on NSLs and the FBI with today’s Circuit Court column: FBI Slips Demand Patriot Act Cuts.

I think the most interesting part of the column is the end where I try to grapple with the FBI’s assertion that the lower standard of proof for national security letters is really helpful to their investigations. While its a small part of this column, its an issue I plan to discuss more in future columns, and as Congress begins to reconsider the USAPATRIOT grant of powers in light of the FBI abuses.

On this Valentine’s Day, my Circuit Court column is about using computers to determine people’s future actions, either through fMRI brain scans of intentionality, or through analysis of social/genetic factors that are risk factors for criminal behavior. This is a new fascination of mine, the way that society craves tool for preventing both counter-terrorism and crime, and the ways in which science and society are not up to the technical and ethical challenges of the task. Read more in Wired News: Tapping Brains for Future Crimes

Arnold’s website blamed in audiotape snafu – Los Angeles Times

This week’s Circuit Court column is Sowing the Seeds of Surveillance.

Victory in Poulsen FOIA case | Stanford Center for Internet and Society

In April of 2006, Wired News editor Kevin Poulsen sued the United States Customs and Border Patrol under the Freedom of Information Act. Poulsen won the case, and yesterday the trial court granted Poulsen $66,000 in attorney’s fees.

Poulsen had asked CBP to disclose under the FOIA documents about a computer failure suffered by the US VISIT system, which was established to screen foreign nationals entering the country against terrorist watch lists. CBP refused, then asked Poulsen to drop his request, then denied the request. claiming that if the public knew what caused the outage, it would harm national security, among other reasons. Poulsen believed that if the problem was fixed, as it should have been, the public had a right to know why the US VISIT computers were malfunctioning.

Poulsen, represented by the Center for Internet and Society and the Cyberlaw Clinic, filed suit. CIS attorney and Associate Director Lauren Gelman was the primary supervisor and lead attorney on the project.

On summary judgment, Judge Illston in the Northern District of California ordered CBP to release documents and the documents revealed that the computers were infected with the Zotob worm, a common Microsoft Windows vulnerability.

Poulsen published two articles on the problem as a result of receiving the documents. (April 12, 2006) (November 2, 2006), (also redacted and unredacted document comparison).

The Zotob infection and CBP’s management of it was one of many technological and bureaucratic problems that ultimately led the government to abandon the US VISIT program, after almost two years and $1.7 billion dollars. Talk about information the public has a right to know.

Cyberlaw Clinic student Megan Adams did fantastic work on this part of the case, writing the complaint and the summary judgment pleadings. Gelman successfully argued the Summary Judgment motion.

Having prevailed, the FOIA says Poulsen is entitled to attorney’s fees, but CBP continued to fight him every step of the way. Poulsen had to file a motion for fees, which Cyberlaw Clinic student Jeff Laretto wrote and prepared to argue at the hearing originally set for Friday, January 19th. The hearing date was vacated with Judge Ilston ruled for Poulsen based on Laretto’s moving papers, granting $66,000 in attorney’s fees. Judge Ilston’s order included findings that Poulsen’s reporting created a public benefit, and that the CBP was not reasonably justified in denying him the documents in the first place.

In addition to Gelman, Adams and Laretto, and of course, Mr. Poulsen, thanks for their help with various aspects of the case goes to our legal assistants Lynda Johnston and Amanda Smith, CIS residential fellows David Olson and David Levine, Fair Use Project Exec. Dir. Tony Falzone, and students in the Cyberlaw Clinic in the Spring 2006 and Fall 2006 semesters.

This week’s Wired News column is entitled Cell Phones Freed! Poor Suffer? After winning a DMCA exemption for cell phone unlocking, TracFone lawyers called to to explain how the DMCA helps them keep handset prices low for grandmothers and immigrants. They said my exemption helps phone arbitragers who buy subsidized TracFones low, unlock them, and sell them overseas at below market price. These people, TracFone says, are criminals, maybe helping terrorists and need the threat of a criminal law like the DMCA to make them stop. The column is a serious look at these claims.

Readers may also be interested to know that during the rulemaking the Librarian of Congress had decided not to consider TracFone’s late comments opposing my exemption. I’m not sure this refusal was the reason I won, because the Copyright Office recommendation to the Librarian did consider, discuss and dismiss TracFone’s comments and nonetheless recommended granting the exemption.

Today, the TracFone lawyers sent me this lawsuit [pdf] filed under the Administrative Procedures Act against the Copyright Office. The lawsuit claims procedural errors denied TracFone an opportunity to be heard on the issue. Stay tuned.

I engage in some retrospection and some wishful thinking in my latest Wired News column, The Bush Era Draws to a Close.

The column reviews three recent trends — legal attacks on journalists, “extraordinary rendition” and torture, and implementation of a surveillance infrastructure — and suggests opportunities for improvement.

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, 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.

Download the pdf. Continue reading for the edited version.


Friends, Romans, Countrymen:

This mid-term general election could be one of the most important Ever for the Democratic Party. Bush’s poll ratings are extremely low. Voters are frustrated with the progress of the war in Iraq and the Administration’s refusal to admit that anything is wrong. The GOP is racked with the Foley teen page scandal. If the Democrats can’t make major gains in both the House and the Senate now, the party is truly, truly incompetent.

Of course, there’s nothing we can do to help, since we live in the liberal stronghold of the San Francisco Bay Area. Our predicable votes won’t be the ones that swing control of Congress to the Dems.

Instead, we can amuse ourselves with the deluge of Propositions and some interesting Board of Supervisor races over who can be the most liberal candidate imaginable.

To make it seem more fun, check out the California Voter Foundation’s “Proposition Song”. The ballot is way too long, indeed. So buckle your seat belts and hang on, because we’re in for a long and bumpy ride.


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Governor: Phil Angelides
Lieutenant Governor: John Garamendi
Secretary of State: Debra Bowen
Controller: John Chiang
Treasurer: Bill Lockyer
Attorney General: Jerry Brown
Insurance Commissioner: Steve Poizner


Senator: Dianne Feinstein
Congress, District 6: Lynn Woolsey
Congress, District 9: Barbara Lee
United States Representative; District 8: Nancy Pelosi


Member of the State Assembly; District 13: Mark Leno
Member of the State Assembly; District 12: No endorsement
State Board of Equalization; District 1: Betty Yee

JUDICIAL RETENTION: Ok, but we are watching you!


Assessor-Recorder; County of San Francisco, Phil Ting
Public Defender; County of San Francisco, Jeff Adachi
BART Board of Directors, District 8: Emily Drennan
District 8: Bevan Dufty
District 2: Michela Alioto-Pier
District 4: Doug Chan
District 6: Rob Black
District 10: Sophie Maxwell


1A Transportation funding: No
1B Highways and ports: Yes
1C Low Income Housing: Yes
1D Public education: Yes
1E Disaster preparedness: Yes
83 Sex offender monitoring: No
84 Water and parks: Yes
85 Teen pregnancy notification: NO!!!
86 Tax on cigarettes: Yes
87 Alternative energy research: YES
88 K-12 education funding: Yes
89 Campaign financing limits: No
90 Private property protection/Eminent Domain: NO


Proposition A: SCHOOL BONDS: No
Proposition E: PARKING TAX: No
Proposition F: PAID SICK LEAVE: No

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Dear Jennifer,

I was very interested in your article featured on Wired this morning on how web 2.0 could be used to enforce democracy.

Some of the ideas you presented reminded me of some services available here in the UK that take publicy available information and put it to use as tools for keeping a check on our politicians.

If you’re not already aware of these sites I’d recommend you take a look:
www.TheyWorkForYou.com – a record of each British MP and their voting record as well as a log of their every word (spoken or written) in Parliament
www.WriteToThem.com – a great facility for e-mailing one’s MP
www.HearFromYourMP.com – a service which allows constituents so sign up to updates from their MP. Once a certain number have signed up the MP is requested to send a message to all those who have signed up.
www.DowningStreetSays.com – this site gives people a briefing of number 10’s daily press briefing for digestion and discussion.
www.PublicWhip.org.uk – this service also shows the voting record of MPs and has contributed much of the source code to the aforementioned services.
ukparse.kforge.net/parlparse – the Parliament Parser project which enables many of the above services to display the information in the way they do.

I hope these will give you some inspiration – they certainly helped me in a campaign which leveraged the power of these services to engage everyday people in politics and keeping a check on their MPs.

Best regards,

Phil Peter

Perhaps the Dallas schoolteacher in this New York Times story is friends with Lorie from my sexual harassment hypothetical? Loving nudie art is not appropriate for work!

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