April 2004

Utah has passed a law regulating spyware which bars companies from installing software that reports its users’ online activity, sends personal data to other companies, or pops up ads without permission.

WhenU, a company that uses spyware to target popup ads at users, is asking for an injunction because the law will impace their business model. The ban takes effect May 3.

Should system administrators for radical websites go to prison? The United States Government seems to think so.

After listening to the oral arguments, I’m wondering why Padilla’s attorneys framed the argument the way they did. Instead of saying “the Constitution doesn’t allow detention without due process”, they argued, “at the very least, the President can’t do this to an American citizen w/o Congressional approval.” This argument got the attorney into debating the question of whether the broad Congressional authorization for Bush to use force in Iraq was sufficient approval for these types of detention, which is not where you want to be. This argument also leads to a debate about whether the citizen/non-citizen distinction matters, which is also not where you want to be. Does anyone have any insight on why the attorneys chose this tact?

Briefs in the Hamdi and Padilla cases can be found here.

The oral arguments can be heard on C SPAN here.

Tomorrow, the Supreme Court will hear oral argument in the Padilla case. This is probably the most important case the Supreme Court has heard since World War II. The question is whether the goverment can indefinitely detain an American citizen arrested on American soil without filing charges, giving access to a lawyer or presenting any proof of wrongdoing. In other words, is this a country governed by the rule of law, or by the president’s say-so? I think the Court not only needs to get this one right, but it needs to be unanimous. They have to hit this one out of the park. If the Court gets this wrong, then even I, patriot that I am, might have to think about whether I can continue to live here, and to be a citizen of this place. Updates as events warrant.

I laughed, I cried, I’ll vote for Kerry: http://www.johnkerryisadouchebagbutimvotingforhimanyway.com/

Is cybersecurity research underfunded? See, Ed Felten’s blog for a new report and further discussion.

A new study reports that there are probably thousands of innocent people in prison. The leading cause of false conviction in rape cases is misidentification by witnesses. The leading causes of erroneous conviction in murder cases are (1) false confession and (2) perjury. False confession is far more common than people believe, more common than common sense would suggest. There needs to be more scientific study on the phenomenon of confession, particularly among children and the mentally retarted.

Perhaps there also need to be more thinking about whether cross examination works. This study suggests that cross examination falls short a significant amount of the time, both in cases where the witness is mistaken and where the witness is lying. I have heard cross examination called the most potent tool devised by humans for the ascertainment of truth. That certainly has not been my experience with it, and I think that’s probably true most of the time for most attorneys, though we are disinclined to say so, lest someone say that we simply don’t wield the tool that well. Our allegience to this blunt tool may simply be because there’s nothing better that we have developed over the years.

A policy question remains. How many false positives (i.e. false convictions) is society willing to tolerate to have an otherwise functional justice system? One District Attorney quoted in the New York Times article on this study said “We all agree that it is better for 10 guilty men to go free than for one innocent man to be convicted. … Is it better for 100,000 guilty men to walk free rather than have one innocent man convicted? The cost-benefit policy answer is no.”

I, of course, think that’s wrong. Criminal prosecution destroys a person’s life and family. If an error can be prevented, it should, and if an error occurs as a regular function of the system, e.g. by relying on unreliable evidence like uncorroborated confession, then the system should change.

But I wonder whether society agrees with me or with the D.A. quoted above? On one hand, people seem very willing to accept some rate of error, even in the most important of endeavors, like voting. Even in the area of medical malpractice, most people who are injured by some kind of mistake do not sue, they just deal with the problem. Perhaps this is why there has been so little public fear and outcry about the detention of Jose Padilla and Yasir Hamdi.

Padilla and Hamdi’s cases will be heard by the U.S. Supreme Court this month. The rate of false conviction in regular criminal cases means that there will be a much higher rate of false detention in these “enemy combatant” cases, since these people are detained without any of the safeguards that adhere in the criminal process (lawyers, cross-examination).

Today’s paper is fodder for innumerable irate rants.

How is Bush’s endorsement of Sharon’s plan going to improve, rather than worsen, the chance of making peace between Israel and the Palistinians, never mind the rest of the Middle East?

Ryan Matthews, sentenced to death as a 17 year old for killing a grocer, turns out to be innocent. DNA on the killer’s ski mask did not match either that of Matthews, or of his friend and co-defendant (now serving life in prison). It does match the DNA of another man, who both confessed to the crime and is already serving time in prison for another murder. New Orleans DA Paul Connick (of the Harry Connick Jr. family) consented to a new trial, and has apparently been open to the DNA challenge to Matthews’ conviction. If only other DAs would follow suit. It is completely beyond me why a prosecutor would refuse to allow testing that could vindicate someone. Nothing could be more evil than putting your wish to seem right over actually checking to ensure you are right

And, the IAEA sent a letter to the United States three weeks ago warning that radioactive materials that could be used to make a dirty bomb are unguarded and being pilfered from Iraqi sites that the agency previously monitored. The agency no longer monitors these sites because they got kicked out of the country by…. the United States in March of 2003 before the invasion. We have refused to let the weapons inspectors into the country, saying that we will search for nuclear weapons. We haven’t found those weapons and apparently we’re not guarding the sites either. This is interesting for two reasons, one political and one policy-related.

The political: Let’s assume that we’re in Iraq to prevent more terrorism. Refusing to allow IAEA to guard the sites, and failing to guard them ourselves is entirely counterproductive if not inexcusable.

The policy: Many people are pushing for greater secrecy about security problems of all sorts following September 11. For example, the Critical Infrastructure Information Act exempts all sorts of information about national security from the Freedom of Information Act. The American Association for the Advancement of Sciences adopted voluntary restrictions on the publication of �dangerous science�, like studies of the anthrax pathogen, or the chemistry of explosives. France just passed a law that prohibits publication of certain information about computer security flaws.

But this story illustrates the problem with those policies. The U.S. government has known about this problem for at least three weeks and appears to have done nothing about it. All we have is public awareness and pressure to change our government’s priorities. If we weren’t allowed to know about this, we’d have to believe the Bush administration when they tell us that the best cure for the dirty bomb is war.

Its slow going….
The follow-up to Altered Carbon. I thought this one was excellent, too.

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