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Archives for January 2012

United States v. Jones is a Near-Optimal Result

January 23, 2012 by

This morning, the Supreme Court handed down its decision in United States v. Jones, the GPS tracking case, deciding unanimously that the government violated the defendant’s Fourth Amendment rights when it installed a wireless GPS tracking device on the undercarriage of his car and used it to monitor his movement’s around town for four weeks without a search warrant.

Despite the unanimous result, the court was not unified in its reasoning. Five Justices signed the majority opinion, authored by Justice Scalia, finding that the Fourth Amendment “at bottom . . . assure[s] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted” and thus analyzing the case under “common-law trespassory” principles.

Justice Alito wrote a concurring opinion, signed by Justices Ginsburg, Breyer, and Kagan, faulting the majority for “decid[ing] the case based on 18th-century tort law” and arguing instead that the case should be decided under Katz’s “reasonable expectations of privacy” test. Applying Katz, the four concurring Justices would have found that the government violated the Fourth Amendment because “long-term tracking” implicated a reasonable expectation of privacy and thus required a warrant.

Justice Sotomayor, who signed the majority opinion, wrote a separate concurring opinion, but more on that in a second.

[Read more…]

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This Week in Copyright – SOPA, Golan, and Megaupload

January 20, 2012 by

It has been an exceptionally busy week for copyright policy. We heard from all three branches of the US Federal Government in one way or another, while the citizens of the Internet flexed their muscles in response.

The most covered story of the week was the battle over SOPA and PIPA — the twin proposed bills that aimed to cut down on online piracy of copyrighted works by giving the government significant new authority to block access to allegedly infringing web sites. Other authors on this blog have pointed out how the bills show inconsistency in the copyright industry’s position on regulating the internet, could threaten free speech in repressive regimes, and may ultimately be found by the courts to violate fundamental constitutional liberties. On Wednesday some of the most popular sites on the web “went dark” or otherwise heightened awareness of the issue, and the surge citizen pleas to Congress caused a surprising reversal of momentum in the House and Senate. [Update: Both PIPA and SOPA have now been shelved.]

Buried in the day’s developments was the Judicial branch’s copyright contribution. In a highly anticipated decision, the Supreme Court ruled on the case of Golan v. Holder. At issue was the question of whether or not Congress had the right to make a law that moved public domain works into copyright. Opponents of this law claimed that such a move violated not only the First Amendment, but also the purpose of the Copyright Clause — not to mention and age-old legal principles. The majority did not agree, and in a 6-2 vote it stated that individuals do not have any particular right that guarantees their use of the public domain, so they have no claim if Congress removes materials from it. Justices Breyer and Alito dissented, explaining that the ruling upset the delicate balance that the Founders had struck in affording limited monopoly rights to content creators. Nevertheless, the majority clearly demonstrated that the Judicial branch continues to trend toward greater expansion of copyright protection.

On Thursday, the Executive Branch weighed in. The Department of Justice announced that it had seized the domain name and servers of the popular file-sharing site Megaupload and had indicted several of the site’s operators. Although Megaupload claimed to be complying with US copyright law — in particular the notice-and-takedown provisions of the Digital Millennium Copyright Act — the feds claimed that the operators knew full well that the majority of the content on the site was infringing. Within minutes of the announcement, hacktivist group Anonymous had launched a denial-of-service attack on the Department of Justice web site, which remained unreachable for hours [Update: days].

Opponents of SOPA and PIPA welcomed the opportunity to reflect on why these developments demonstrated the shortcomings of the proposed bills. Some of them noted that the DoJ’s actions were done without any additional authority from harmful new bills, while others observed that such approaches to enforcement are ultimately ineffective — they observed that it was only a matter of time until Megaupload returned, or the many other file-sharing sites filled their shoes. By Thursday night, all four GOP presidential candidates had come out against SOPA.

It is hard to consolidate all of these developments into a coherent story of where things are headed. However, a few things seem clear. First, the SOPA/PIPA backlash is shows us that the internet can help citizens to rally a truly remarkable effort that penetrates the beltway bubble. Second, internet freedom is a compelling and accessible counter-narrative to copyright maximalism and government policing. Third, the courts continue to favor an approach to copyright that emphasizes property rights of those who have already created works over the free speech rights of those who may rely on those works to create new works. Fourth, the enforcement arms of the government are interested in taking ever-more-extreme measures to take down those accused of infringement, and are committing more taxpayer resources to a problem that continues to grow despite their approach.

But perhaps most significantly, this week shows us that there is just plain turmoil in this area. Policymakers are struggling to find good answers, and sometimes their “solutions” provoke far more criticism than praise.

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Who won the Iowa primary – and does it matter from a technical perspective?

January 19, 2012 by

As Americans know, the 2012 presidential season began “officially” with the Iowa caucuses on January 3. I say “officially”, because caucuses are a strange beast that are a creation of political parties, and not government.

Regardless, the Republican results were interesting – out of about 125,000 votes cast, Mitt Romney led by eight votes over Rick Santorum, with other contenders far behind. The “official” results released today show Santorum ahead by 34 votes.

However, it’s not so simple as that.

First, there’s the matter of paper ballots. The good news is that Iowa caucuses, unlike primaries and general elections in some states, are recorded on paper. So in a case like this, there’s paper to turn to, unlike all-electronic systems where the results rely on correct software.

Second, there’s the matter of proper chain of custody. In releasing the updated results, it appears that some of the records from the caucuses cannot be located. It doesn’t matter whether the records are paper or electronic – if the chain of custody is weak (or non-existent!), then the results are at best suspect.

Third, and perhaps most importantly, “the early part of the Presidential Primary series is the only case in American politics that I know of where the preliminary election results may be actually more important than the final certified results.” [Thanks to David Jefferson for this observation.] While this is not a technical issue, it points out that our technical solutions for voting systems must recognize the reality that timely accurate results are important – timely results that are wrong aren’t helpful, and slow results that are right will be ignored.

Finally, it’s critical to realize that caucuses, like primaries in some states, are run by the parties, and not by the election professionals. Perhaps if the caucuses were run by the pros, some of these problems might not have happened.

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