Tag Archives: Supreme Court

Съд на ЕС: за компетентността на частните компании, опериращи платформи, да заличават съдържание

Post Syndicated from nellyo original https://nellyo.wordpress.com/2018/01/26/fb-5/

Много важен въпрос е поставен пред Съда на ЕС,  засега не е публикуван на сайта на Съда – ще допълня, когато го публикуват.

Нарастващата мощ на интернет  компаниите да вземат решения по отношение на съдържанието не бива да остава извън полезрението ни.

Съд на ЕС: писмените отговори по време на изпит като лични данни

Post Syndicated from nellyo original https://nellyo.wordpress.com/2017/12/20/dp-22/

Стана известно решението на Съда на ЕС по дело  C‑434/16  с предмет преюдициално запитване, отправено на основание член 267 ДФЕС от Supreme Court (Върховен съд, Ирландия)   в рамките на производство по дело Peter Nowak срещу Data Protection Commissioner.

Преюдициалното запитване се отнася до тълкуването на Директива 95/46/ЕО на Европейския парламент и на Съвета от 24 октомври 1995 година за защита на физическите лица при обработването на лични данни.

 В качеството си на стажант експерт-счетоводител г‑н Nowak издържа успешно определени изпити, но има и такъв, който не издържа. Във връзка с това той подава молба за достъп до всички засягащи го лични данни, съхранявани от професионалната организация на експерт-счетоводителите. Организацията  отказва да му предостави неговата писмена изпитна работа, с довода че тя не съдържала лични данни по смисъла на Закона за защита на данните. Комисарят за защита на данните също смята, че “тези материали по принцип не представляват лични данни“. Nowak обжалва и ирландският съд пита:

„1)      Може ли информацията, записана в/като отговори, дадени от кандидат по време на изпит за професионални умения, да се квалифицира като лични данни по смисъла на Директива 95/46?

2)      При отговор на първия въпрос в смисъл, че цялата или част от информацията може да бъде квалифицирана като лични данни по смисъла на тази директива, какви фактори са релевантни, за да се прецени дали в конкретен случай такава писмена работа представлява лични данни, и каква тежест трябва да се придаде на тези фактори?“.

Съдът на ЕС:

В член 2, буква а) от Директива 95/46 личните данни са определени като „всяка информация, свързана с идентифицирано или подлежащо на идентификация лице“.  Всъщност употребата на израза „всяка информация“ в определението на понятието „лични данни“ в член 2, буква а) от Директива 95/46 отразява целта на законодателя на Съюза да придаде широк смисъл на това понятие, което не се свежда до чувствителната информация или информацията с частен характер, а потенциално обхваща всякакъв вид информация, както обективна, така и субективна, под формата на становища или преценки, при условие че „засяга“ съответното лице.[34]

Що се отнася до коментарите на проверителя по отговорите на кандидата, налага се изводът, че и те като отговорите, дадени от кандидата по време на изпита, представляват информация, засягаща този кандидат. [42] Съдържанието на тези коментари съответно е отражение на становището или преценката на проверителя относно индивидуалните резултати, постигнати от кандидата по време на изпита, и по-специално относно неговите знания и умения в съответната област.[43] Всъщност една и съща информация може да засяга няколко физически лица и съответно за тях да представлява лични данни по смисъла на член 2, буква а) от Директива 95/46, при условие че тези лица са идентифицирани или могат да бъдат идентифицирани.[45]

В този контекст следва да се отбележи, че защитата на основното право на личен живот по-специално предполага всяко физическо лице да може да се увери, че засягащите го лични данни са точни и се обработват законосъобразно. Както следва от съображение 41 от Директива 95/46, именно за да може да извърши необходимите проверки, по силата на член 12, буква а) от тази директива съответното лице разполага с право на достъп до данните, които го засягат и са предмет на обработка. Това право на достъп е необходимо по-специално за да се даде възможност на лицето при необходимост да изиска от администратора да поправи, изтрие или блокира неговите данни и така да упражни правото по член 12, буква б) от посочената директива [57]

Накрая, трябва да се констатира, от една страна, че правата на достъп и на поправяне по член 12, букви а) и б) от Директива 95/46 не обхващат изпитните въпроси, които сами по себе си не представляват лични данни на кандидата.[58] Бегло се констатира още, че правата на лицето подлежат на ограничения както по Директива 95/46, така и по новия  Регламент 2016/679, който я заменя – “ако подобно ограничаване представлява необходима мярка за гарантиране на правата и свободите на други лица.”

Член 2, буква а) от Директива 95/46/ЕО   трябва да се тълкува в смисъл, че при условия като тези в главното производство писмените отговори, дадени от кандидат по време на изпит за професионални умения, и евентуалните коментари на проверителя по тези отговори представляват лични данни по смисъла на тази разпоредба.

След решението на ЕСПЧ, от което разбрахме, че преподаването е социално взаимодействие и част от личния живот на преподавателя, сега от Съда на ЕС научаваме още и за личните аспекти на социалното взаимодействие изпитване.

Filed under: Digital, EU Law, Media Law Tagged: dp, съд на ес

Warrant Protections against Police Searches of Our Data

Post Syndicated from Bruce Schneier original https://www.schneier.com/blog/archives/2017/11/warrant_protect.html

The cell phones we carry with us constantly are the most perfect surveillance device ever invented, and our laws haven’t caught up to that reality. That might change soon.

This week, the Supreme Court will hear a case with profound implications on your security and privacy in the coming years. The Fourth Amendment’s prohibition of unlawful search and seizure is a vital right that protects us all from police overreach, and the way the courts interpret it is increasingly nonsensical in our computerized and networked world. The Supreme Court can either update current law to reflect the world, or it can further solidify an unnecessary and dangerous police power.

The case centers on cell phone location data and whether the police need a warrant to get it, or if they can use a simple subpoena, which is easier to obtain. Current Fourth Amendment doctrine holds that you lose all privacy protections over any data you willingly share with a third party. Your cellular provider, under this interpretation, is a third party with whom you’ve willingly shared your movements, 24 hours a day, going back months — even though you don’t really have any choice about whether to share with them. So police can request records of where you’ve been from cell carriers without any judicial oversight. The case before the court, Carpenter v. United States, could change that.

Traditionally, information that was most precious to us was physically close to us. It was on our bodies, in our homes and offices, in our cars. Because of that, the courts gave that information extra protections. Information that we stored far away from us, or gave to other people, afforded fewer protections. Police searches have been governed by the “third-party doctrine,” which explicitly says that information we share with others is not considered private.

The Internet has turned that thinking upside-down. Our cell phones know who we talk to and, if we’re talking via text or e-mail, what we say. They track our location constantly, so they know where we live and work. Because they’re the first and last thing we check every day, they know when we go to sleep and when we wake up. Because everyone has one, they know whom we sleep with. And because of how those phones work, all that information is naturally shared with third parties.

More generally, all our data is literally stored on computers belonging to other people. It’s our e-mail, text messages, photos, Google docs, and more ­ all in the cloud. We store it there not because it’s unimportant, but precisely because it is important. And as the Internet of Things computerizes the rest our lives, even more data will be collected by other people: data from our health trackers and medical devices, data from our home sensors and appliances, data from Internet-connected “listeners” like Alexa, Siri, and your voice-activated television.

All this data will be collected and saved by third parties, sometimes for years. The result is a detailed dossier of your activities more complete than any private investigator –­ or police officer –­ could possibly collect by following you around.

The issue here is not whether the police should be allowed to use that data to help solve crimes. Of course they should. The issue is whether that information should be protected by the warrant process that requires the police to have probable cause to investigate you and get approval by a court.

Warrants are a security mechanism. They prevent the police from abusing their authority to investigate someone they have no reason to suspect of a crime. They prevent the police from going on “fishing expeditions.” They protect our rights and liberties, even as we willingly give up our privacy to the legitimate needs of law enforcement.

The third-party doctrine never made a lot of sense. Just because I share an intimate secret with my spouse, friend, or doctor doesn’t mean that I no longer consider it private. It makes even less sense in today’s hyper-connected world. It’s long past time the Supreme Court recognized that a months’-long history of my movements is private, and my e-mails and other personal data deserve the same protections, whether they’re on my laptop or on Google’s servers.

This essay previously appeared in the Washington Post.

Details on the case. Two opinion pieces.

I signed on to two amicus briefs on the case.

EDITED TO ADD (12/1): Good commentary on the Supreme Court oral arguments.

"Responsible encryption" fallacies

Post Syndicated from Robert Graham original http://blog.erratasec.com/2017/10/responsible-encryption-fallacies.html

Deputy Attorney General Rod Rosenstein gave a speech recently calling for “Responsible Encryption” (aka. “Crypto Backdoors”). It’s full of dangerous ideas that need to be debunked.

The importance of law enforcement

The first third of the speech talks about the importance of law enforcement, as if it’s the only thing standing between us and chaos. It cites the 2016 Mirai attacks as an example of the chaos that will only get worse without stricter law enforcement.

But the Mira case demonstrated the opposite, how law enforcement is not needed. They made no arrests in the case. A year later, they still haven’t a clue who did it.

Conversely, we technologists have fixed the major infrastructure issues. Specifically, those affected by the DNS outage have moved to multiple DNS providers, including a high-capacity DNS provider like Google and Amazon who can handle such large attacks easily.

In other words, we the people fixed the major Mirai problem, and law-enforcement didn’t.

Moreover, instead being a solution to cyber threats, law enforcement has become a threat itself. The DNC didn’t have the FBI investigate the attacks from Russia likely because they didn’t want the FBI reading all their files, finding wrongdoing by the DNC. It’s not that they did anything actually wrong, but it’s more like that famous quote from Richelieu “Give me six words written by the most honest of men and I’ll find something to hang him by”. Give all your internal emails over to the FBI and I’m certain they’ll find something to hang you by, if they want.
Or consider the case of Andrew Auernheimer. He found AT&T’s website made public user accounts of the first iPad, so he copied some down and posted them to a news site. AT&T had denied the problem, so making the problem public was the only way to force them to fix it. Such access to the website was legal, because AT&T had made the data public. However, prosecutors disagreed. In order to protect the powerful, they twisted and perverted the law to put Auernheimer in jail.

It’s not that law enforcement is bad, it’s that it’s not the unalloyed good Rosenstein imagines. When law enforcement becomes the thing Rosenstein describes, it means we live in a police state.

Where law enforcement can’t go

Rosenstein repeats the frequent claim in the encryption debate:

Our society has never had a system where evidence of criminal wrongdoing was totally impervious to detection

Of course our society has places “impervious to detection”, protected by both legal and natural barriers.

An example of a legal barrier is how spouses can’t be forced to testify against each other. This barrier is impervious.

A better example, though, is how so much of government, intelligence, the military, and law enforcement itself is impervious. If prosecutors could gather evidence everywhere, then why isn’t Rosenstein prosecuting those guilty of CIA torture?

Oh, you say, government is a special exception. If that were the case, then why did Rosenstein dedicate a precious third of his speech discussing the “rule of law” and how it applies to everyone, “protecting people from abuse by the government”. It obviously doesn’t, there’s one rule of government and a different rule for the people, and the rule for government means there’s lots of places law enforcement can’t go to gather evidence.

Likewise, the crypto backdoor Rosenstein is demanding for citizens doesn’t apply to the President, Congress, the NSA, the Army, or Rosenstein himself.

Then there are the natural barriers. The police can’t read your mind. They can only get the evidence that is there, like partial fingerprints, which are far less reliable than full fingerprints. They can’t go backwards in time.

I mention this because encryption is a natural barrier. It’s their job to overcome this barrier if they can, to crack crypto and so forth. It’s not our job to do it for them.

It’s like the camera that increasingly comes with TVs for video conferencing, or the microphone on Alexa-style devices that are always recording. This suddenly creates evidence that the police want our help in gathering, such as having the camera turned on all the time, recording to disk, in case the police later gets a warrant, to peer backward in time what happened in our living rooms. The “nothing is impervious” argument applies here as well. And it’s equally bogus here. By not helping police by not recording our activities, we aren’t somehow breaking some long standing tradit

And this is the scary part. It’s not that we are breaking some ancient tradition that there’s no place the police can’t go (with a warrant). Instead, crypto backdoors breaking the tradition that never before have I been forced to help them eavesdrop on me, even before I’m a suspect, even before any crime has been committed. Sure, laws like CALEA force the phone companies to help the police against wrongdoers — but here Rosenstein is insisting I help the police against myself.

Balance between privacy and public safety

Rosenstein repeats the frequent claim that encryption upsets the balance between privacy/safety:

Warrant-proof encryption defeats the constitutional balance by elevating privacy above public safety.

This is laughable, because technology has swung the balance alarmingly in favor of law enforcement. Far from “Going Dark” as his side claims, the problem we are confronted with is “Going Light”, where the police state monitors our every action.

You are surrounded by recording devices. If you walk down the street in town, outdoor surveillance cameras feed police facial recognition systems. If you drive, automated license plate readers can track your route. If you make a phone call or use a credit card, the police get a record of the transaction. If you stay in a hotel, they demand your ID, for law enforcement purposes.

And that’s their stuff, which is nothing compared to your stuff. You are never far from a recording device you own, such as your mobile phone, TV, Alexa/Siri/OkGoogle device, laptop. Modern cars from the last few years increasingly have always-on cell connections and data recorders that record your every action (and location).

Even if you hike out into the country, when you get back, the FBI can subpoena your GPS device to track down your hidden weapon’s cache, or grab the photos from your camera.

And this is all offline. So much of what we do is now online. Of the photographs you own, fewer than 1% are printed out, the rest are on your computer or backed up to the cloud.

Your phone is also a GPS recorder of your exact position all the time, which if the government wins the Carpenter case, they police can grab without a warrant. Tagging all citizens with a recording device of their position is not “balance” but the premise for a novel more dystopic than 1984.

If suspected of a crime, which would you rather the police searched? Your person, houses, papers, and physical effects? Or your mobile phone, computer, email, and online/cloud accounts?

The balance of privacy and safety has swung so far in favor of law enforcement that rather than debating whether they should have crypto backdoors, we should be debating how to add more privacy protections.

“But it’s not conclusive”

Rosenstein defends the “going light” (“Golden Age of Surveillance”) by pointing out it’s not always enough for conviction. Nothing gives a conviction better than a person’s own words admitting to the crime that were captured by surveillance. This other data, while copious, often fails to convince a jury beyond a reasonable doubt.
This is nonsense. Police got along well enough before the digital age, before such widespread messaging. They solved terrorist and child abduction cases just fine in the 1980s. Sure, somebody’s GPS location isn’t by itself enough — until you go there and find all the buried bodies, which leads to a conviction. “Going dark” imagines that somehow, the evidence they’ve been gathering for centuries is going away. It isn’t. It’s still here, and matches up with even more digital evidence.
Conversely, a person’s own words are not as conclusive as you think. There’s always missing context. We quickly get back to the Richelieu “six words” problem, where captured communications are twisted to convict people, with defense lawyers trying to untwist them.

Rosenstein’s claim may be true, that a lot of criminals will go free because the other electronic data isn’t convincing enough. But I’d need to see that claim backed up with hard studies, not thrown out for emotional impact.

Terrorists and child molesters

You can always tell the lack of seriousness of law enforcement when they bring up terrorists and child molesters.
To be fair, sometimes we do need to talk about terrorists. There are things unique to terrorism where me may need to give government explicit powers to address those unique concerns. For example, the NSA buys mobile phone 0day exploits in order to hack terrorist leaders in tribal areas. This is a good thing.
But when terrorists use encryption the same way everyone else does, then it’s not a unique reason to sacrifice our freedoms to give the police extra powers. Either it’s a good idea for all crimes or no crimes — there’s nothing particular about terrorism that makes it an exceptional crime. Dead people are dead. Any rational view of the problem relegates terrorism to be a minor problem. More citizens have died since September 8, 2001 from their own furniture than from terrorism. According to studies, the hot water from the tap is more of a threat to you than terrorists.
Yes, government should do what they can to protect us from terrorists, but no, it’s not so bad of a threat that requires the imposition of a military/police state. When people use terrorism to justify their actions, it’s because they trying to form a military/police state.
A similar argument works with child porn. Here’s the thing: the pervs aren’t exchanging child porn using the services Rosenstein wants to backdoor, like Apple’s Facetime or Facebook’s WhatsApp. Instead, they are exchanging child porn using custom services they build themselves.
Again, I’m (mostly) on the side of the FBI. I support their idea of buying 0day exploits in order to hack the web browsers of visitors to the secret “PlayPen” site. This is something that’s narrow to this problem and doesn’t endanger the innocent. On the other hand, their calls for crypto backdoors endangers the innocent while doing effectively nothing to address child porn.
Terrorists and child molesters are a clichéd, non-serious excuse to appeal to our emotions to give up our rights. We should not give in to such emotions.

Definition of “backdoor”

Rosenstein claims that we shouldn’t call backdoors “backdoors”:

No one calls any of those functions [like key recovery] a “back door.”  In fact, those capabilities are marketed and sought out by many users.

He’s partly right in that we rarely refer to PGP’s key escrow feature as a “backdoor”.

But that’s because the term “backdoor” refers less to how it’s done and more to who is doing it. If I set up a recovery password with Apple, I’m the one doing it to myself, so we don’t call it a backdoor. If it’s the police, spies, hackers, or criminals, then we call it a “backdoor” — even it’s identical technology.

Wikipedia uses the key escrow feature of the 1990s Clipper Chip as a prime example of what everyone means by “backdoor“. By “no one”, Rosenstein is including Wikipedia, which is obviously incorrect.

Though in truth, it’s not going to be the same technology. The needs of law enforcement are different than my personal key escrow/backup needs. In particular, there are unsolvable problems, such as a backdoor that works for the “legitimate” law enforcement in the United States but not for the “illegitimate” police states like Russia and China.

I feel for Rosenstein, because the term “backdoor” does have a pejorative connotation, which can be considered unfair. But that’s like saying the word “murder” is a pejorative term for killing people, or “torture” is a pejorative term for torture. The bad connotation exists because we don’t like government surveillance. I mean, honestly calling this feature “government surveillance feature” is likewise pejorative, and likewise exactly what it is that we are talking about.

Providers

Rosenstein focuses his arguments on “providers”, like Snapchat or Apple. But this isn’t the question.

The question is whether a “provider” like Telegram, a Russian company beyond US law, provides this feature. Or, by extension, whether individuals should be free to install whatever software they want, regardless of provider.

Telegram is a Russian company that provides end-to-end encryption. Anybody can download their software in order to communicate so that American law enforcement can’t eavesdrop. They aren’t going to put in a backdoor for the U.S. If we succeed in putting backdoors in Apple and WhatsApp, all this means is that criminals are going to install Telegram.

If the, for some reason, the US is able to convince all such providers (including Telegram) to install a backdoor, then it still doesn’t solve the problem, as uses can just build their own end-to-end encryption app that has no provider. It’s like email: some use the major providers like GMail, others setup their own email server.

Ultimately, this means that any law mandating “crypto backdoors” is going to target users not providers. Rosenstein tries to make a comparison with what plain-old telephone companies have to do under old laws like CALEA, but that’s not what’s happening here. Instead, for such rules to have any effect, they have to punish users for what they install, not providers.

This continues the argument I made above. Government backdoors is not something that forces Internet services to eavesdrop on us — it forces us to help the government spy on ourselves.
Rosenstein tries to address this by pointing out that it’s still a win if major providers like Apple and Facetime are forced to add backdoors, because they are the most popular, and some terrorists/criminals won’t move to alternate platforms. This is false. People with good intentions, who are unfairly targeted by a police state, the ones where police abuse is rampant, are the ones who use the backdoored products. Those with bad intentions, who know they are guilty, will move to the safe products. Indeed, Telegram is already popular among terrorists because they believe American services are already all backdoored. 
Rosenstein is essentially demanding the innocent get backdoored while the guilty don’t. This seems backwards. This is backwards.

Apple is morally weak

The reason I’m writing this post is because Rosenstein makes a few claims that cannot be ignored. One of them is how he describes Apple’s response to government insistence on weakening encryption doing the opposite, strengthening encryption. He reasons this happens because:

Of course they [Apple] do. They are in the business of selling products and making money. 

We [the DoJ] use a different measure of success. We are in the business of preventing crime and saving lives. 

He swells in importance. His condescending tone ennobles himself while debasing others. But this isn’t how things work. He’s not some white knight above the peasantry, protecting us. He’s a beat cop, a civil servant, who serves us.

A better phrasing would have been:

They are in the business of giving customers what they want.

We are in the business of giving voters what they want.

Both sides are doing the same, giving people what they want. Yes, voters want safety, but they also want privacy. Rosenstein imagines that he’s free to ignore our demands for privacy as long has he’s fulfilling his duty to protect us. He has explicitly rejected what people want, “we use a different measure of success”. He imagines it’s his job to tell us where the balance between privacy and safety lies. That’s not his job, that’s our job. We, the people (and our representatives), make that decision, and it’s his job is to do what he’s told. His measure of success is how well he fulfills our wishes, not how well he satisfies his imagined criteria.

That’s why those of us on this side of the debate doubt the good intentions of those like Rosenstein. He criticizes Apple for wanting to protect our rights/freedoms, and declare they measure success differently.

They are willing to be vile

Rosenstein makes this argument:

Companies are willing to make accommodations when required by the government. Recent media reports suggest that a major American technology company developed a tool to suppress online posts in certain geographic areas in order to embrace a foreign government’s censorship policies. 

Let me translate this for you:

Companies are willing to acquiesce to vile requests made by police-states. Therefore, they should acquiesce to our vile police-state requests.

It’s Rosenstein who is admitting here is that his requests are those of a police-state.

Constitutional Rights

Rosenstein says:

There is no constitutional right to sell warrant-proof encryption.

Maybe. It’s something the courts will have to decide. There are many 1st, 2nd, 3rd, 4th, and 5th Amendment issues here.
The reason we have the Bill of Rights is because of the abuses of the British Government. For example, they quartered troops in our homes, as a way of punishing us, and as a way of forcing us to help in our own oppression. The troops weren’t there to defend us against the French, but to defend us against ourselves, to shoot us if we got out of line.

And that’s what crypto backdoors do. We are forced to be agents of our own oppression. The principles enumerated by Rosenstein apply to a wide range of even additional surveillance. With little change to his speech, it can equally argue why the constant TV video surveillance from 1984 should be made law.

Let’s go back and look at Apple. It is not some base company exploiting consumers for profit. Apple doesn’t have guns, they cannot make people buy their product. If Apple doesn’t provide customers what they want, then customers vote with their feet, and go buy an Android phone. Apple isn’t providing encryption/security in order to make a profit — it’s giving customers what they want in order to stay in business.
Conversely, if we citizens don’t like what the government does, tough luck, they’ve got the guns to enforce their edicts. We can’t easily vote with our feet and walk to another country. A “democracy” is far less democratic than capitalism. Apple is a minority, selling phones to 45% of the population, and that’s fine, the minority get the phones they want. In a Democracy, where citizens vote on the issue, those 45% are screwed, as the 55% impose their will unwanted onto the remainder.

That’s why we have the Bill of Rights, to protect the 49% against abuse by the 51%. Regardless whether the Supreme Court agrees the current Constitution, it is the sort right that might exist regardless of what the Constitution says. 

Obliged to speak the truth

Here is the another part of his speech that I feel cannot be ignored. We have to discuss this:

Those of us who swear to protect the rule of law have a different motivation.  We are obliged to speak the truth.

The truth is that “going dark” threatens to disable law enforcement and enable criminals and terrorists to operate with impunity.

This is not true. Sure, he’s obliged to say the absolute truth, in court. He’s also obliged to be truthful in general about facts in his personal life, such as not lying on his tax return (the sort of thing that can get lawyers disbarred).

But he’s not obliged to tell his spouse his honest opinion whether that new outfit makes them look fat. Likewise, Rosenstein knows his opinion on public policy doesn’t fall into this category. He can say with impunity that either global warming doesn’t exist, or that it’ll cause a biblical deluge within 5 years. Both are factually untrue, but it’s not going to get him fired.

And this particular claim is also exaggerated bunk. While everyone agrees encryption makes law enforcement’s job harder than with backdoors, nobody honestly believes it can “disable” law enforcement. While everyone agrees that encryption helps terrorists, nobody believes it can enable them to act with “impunity”.

I feel bad here. It’s a terrible thing to question your opponent’s character this way. But Rosenstein made this unavoidable when he clearly, with no ambiguity, put his integrity as Deputy Attorney General on the line behind the statement that “going dark threatens to disable law enforcement and enable criminals and terrorists to operate with impunity”. I feel it’s a bald face lie, but you don’t need to take my word for it. Read his own words yourself and judge his integrity.

Conclusion

Rosenstein’s speech includes repeated references to ideas like “oath”, “honor”, and “duty”. It reminds me of Col. Jessup’s speech in the movie “A Few Good Men”.

If you’ll recall, it was rousing speech, “you want me on that wall” and “you use words like honor as a punchline”. Of course, since he was violating his oath and sending two privates to death row in order to avoid being held accountable, it was Jessup himself who was crapping on the concepts of “honor”, “oath”, and “duty”.

And so is Rosenstein. He imagines himself on that wall, doing albeit terrible things, justified by his duty to protect citizens. He imagines that it’s he who is honorable, while the rest of us not, even has he utters bald faced lies to further his own power and authority.

We activists oppose crypto backdoors not because we lack honor, or because we are criminals, or because we support terrorists and child molesters. It’s because we value privacy and government officials who get corrupted by power. It’s not that we fear Trump becoming a dictator, it’s that we fear bureaucrats at Rosenstein’s level becoming drunk on authority — which Rosenstein demonstrably has. His speech is a long train of corrupt ideas pursuing the same object of despotism — a despotism we oppose.

In other words, we oppose crypto backdoors because it’s not a tool of law enforcement, but a tool of despotism.

Do the Police Need a Search Warrant to Access Cell Phone Location Data?

Post Syndicated from Bruce Schneier original https://www.schneier.com/blog/archives/2017/08/do_the_police_n.html

The US Supreme Court is deciding a case that will establish whether the police need a warrant to access cell phone location data. This week I signed on to an amicus brief from a wide array of security technologists outlining the technical arguments as why the answer should be yes. Susan Landau summarized our arguments.

A bunch of tech companies also submitted a brief.

Encryption Policy and Freedom of the Press

Post Syndicated from Bruce Schneier original https://www.schneier.com/blog/archives/2017/04/encryption_poli.html

Interesting law journal article: “Encryption and the Press Clause,” by D. Victoria Barantetsky.

Abstract: Almost twenty years ago, a hostile debate over whether government could regulate encryption — later named the Crypto Wars — seized the country. At the center of this debate stirred one simple question: is encryption protected speech? This issue touched all branches of government percolating from Congress, to the President, and eventually to the federal courts. In a waterfall of cases, several United States Court of Appeals appeared to reach a consensus that encryption was protected speech under the First Amendment, and with that the Crypto Wars appeared to be over, until now.

Nearly twenty years later, the Crypto Wars have returned. Following recent mass shootings, law enforcement has once again questioned the legal protection for encryption and tried to implement “backdoor” techniques to access messages sent over encrypted channels. In the case, Apple v. FBI, the agency tried to compel Apple to grant access to the iPhone of a San Bernardino shooter. The case was never decided, but the legal arguments briefed before the court were essentially the same as they were two decades prior. Apple and amici supporting the company argued that encryption was protected speech.

While these arguments remain convincing, circumstances have changed in ways that should be reflected in the legal doctrines that lawyers use. Unlike twenty years ago, today surveillance is ubiquitous, and the need for encryption is no longer felt by a seldom few. Encryption has become necessary for even the most basic exchange of information given that most Americans share “nearly every aspect of their lives ­– from the mundane to the intimate” over the Internet, as stated in a recent Supreme Court opinion.

Given these developments, lawyers might consider a new justification under the Press Clause. In addition to the many doctrinal concerns that exist with protection under the Speech Clause, the
Press Clause is normatively and descriptively more accurate at protecting encryption as a tool for secure communication without fear of government surveillance. This Article outlines that framework by examining the historical and theoretical transformation of the Press Clause since its inception.

EFF: The Patent Troll Abides

Post Syndicated from ris original http://lwn.net/Articles/710290/rss

The Electronic Frontier Foundation has a review
of patent lawsuits
in 2016. “We saw mixed results in the courts
this year. The Supreme Court issued a good
decision
cutting back on out of control damages in design patent
cases. Meanwhile, the Federal Circuit issued a very disappointing
decision
that allows patent owners to undermine ownership by asserting
patent rights even after selling a patented good. Fortunately, the Supreme
Court has agreed
to review that ruling. We will file an amicus brief
supporting the fundamental principle that once you buy something, you own
it.

Here’s Why Software Patents Are in Peril (Fortune)

Post Syndicated from ris original http://lwn.net/Articles/703137/rss

Fortune covers a ruling
[PDF] by the U.S. Court of Appeals for the Federal Circuit that invalidates
three patents asserted against anti-virus companies Symantec and Trend
Micro. “The most important part of the decision, which has created a
stir among the patent bar, is a concurrence by Circuit Judge Haldane
Mayer. In striking down a key claim from U.S. Patent 5987610,
which claims a monopoly on using anti-virus tools within a phone network,
Mayer says it is time to acknowledge that a famous Supreme Court 2014
decision known as “Alice” basically ended software patents altogether.

How the media really created Trump

Post Syndicated from Robert Graham original http://blog.erratasec.com/2016/03/how-media-really-created-trump_26.html

This NYTimes op-ed claims to diagnose the press’s failings with regard to Trump, but in its first sentence demonstrates how little press understands the problem. The problem isn’t with Trump, but with the press.The reason for Trump is that the press has discarded its principle of “objectivity”. Reasonable people disagree. The failing of the press is that they misrepresent one side, the Republicans, as being unreasonable. You see that in the op-ed above, where the very first sentence decries the “Republican Party’s toxic manipulation of racial resentments”. In fact, both parties are equally reasonable, or unreasonable as the case may be, with regards to race.The article suggests the press should have done more to debunk Trump in the”form of fact checks and robust examination of policy proposals”. But the press doesn’t do that for Democrats, so why should a Republican candidate they don’t like get singled out? No amount of attacking Trump sticks because the press is blatantly unfair.Hillary clearly is complicit in the “Benghazi” affair, because she led the charge to inject weapons into Libya to take down Ghadaffi, then ignored Chris Steven’s efforts to clean up the mess. Hillary’s use of her own email server was clearly an attempt to bypass transparency rules and conduct underhanded diplomacy, as the now public emails show. Yes, it’s true that there are some invalid Republican attacks on these issues that are blatantly partisan. But the press is less interested in holding Hillary accountable for these failures, and more interested in portraying Republicans as unreasonable by focusing on those partisan attacks.Since the press doesn’t attack Obama or Hillary, the public will never see any attack against Trump as fair. The article points out that Politifact rates Trump as more dishonest than the other candidates. But that’s because it debunks virtually everything Trump says, while at the same time, not doing the same for Democrats. Populist rhetoric by any candidate should get the same treatment, but doesn’t. Trump is a populist demagogue, so of course what he says is going to have little relation to the truth, but nobody is going to believe this accusation when you are obviously so unfair about fact checking. Bernie is also a populist demagogue, but there’s little serious effort to debunk what he says.These biases I mention are obvious to anybody outside the system. I’m a Libertarian, so I have equal disdain for both parties. In theory, Libertarians slightly favor the Republican rhetoric on the free market, but since Republican politicians never deliver on this, we slightly favor Democrat practical results on individual freedoms (e.g. acceptance of homosexuality). My point is that as somebody with some objectivity on the parties, the inability of the press to be objective is obvious to me.Every time I bring this up, the press counters with “false balance“, a term they’ve concocted to justify their biases. So let’s pick the least partisan topic, that of “vaccines causing autism” to demonstrate the falseness of “false balance”.To start with, we agree that there’s absolutely no link between vaccines and autism, and that the science is clear on this, and that only crazy/stupid people would think their is a link.The thing is, the policy question is almost unrelated to the science question. Whatever the science says, the policy question is still whether the government can force people to get vaccines (or parents to vaccinate their child). There are two sides to this issue. On one side is the “choice” question of whether it’s a person’s choice what to do with their body. For example, in the abortion debate there is often the analogy of whether people can be forced to donate a kidney, or to give a bone marrow transplant. Moreover, while they don’t cause autism, vaccines do sometimes cause complications, so there is a risk (albeit tiny), to the person receiving the injection. On the other hand, vaccines are fundamentally unlike all other health issues, with vast benefits to be derived from “herd immunity” when everyone getting a vaccine. For example, the measles vaccine is imperfect, so when enough people shirk their duty to get vaccinated, even some vaccinated people may catch the disease.The point being is that we have a clear, two-sided policy debate here, quite apart from the crazies.More importantly is the way the press uses this issue to smear Republicans, in much the same way that I describe above with the way the NYTimes smear Republicans with race issues. Consider this story from CNN “Chris Christie sidesteps vaccine science“. All Christie said was, in response to the policy issue, that most of the time it’s the parent’s choice, which reporters unfairly extended to a position that “sidesteps science”. Obama’s spokesman said much the same thing only days prior to this event, but didn’t get smeared like Christie. In fact, whereas most candidates take the policy position that its always the parent’s choice, Christie took the position that sometimes the government can override parent’s choice when it’s important. But, that CNN article, and many other press articles at the time, smear Christie as somehow supporting anti-vaxxers.The press likewise ignore Democrats on this issue, who pander just as much to the anti-vaxxers as any Republicans. In 2008, candidate Obama said “We’ve seen just a skyrocketing autism rate. Some people are suspicious that it’s connected to the vaccines. This person included”. Candidate Hillary said “I am committed to make investments to find the causes of autism, including possible environmental causes like vaccines”. The science was as clear then as it is now that there’s no link.No politician (except Trump, of course) is on the anti-vax side, but at the same time, they don’t want to needlessly antagonize potential voters. Most take the policy position supporting parental/personal choice, but rather than condemning idiots/crazies for their bad science, simply say things like “well, as a parent, I get my kids vaccinated”. Trump, of course, goes full anti-vax, but once the press has already shown themselves to be corrupt and biased on this issue, what they say about Trump is no longer trusted.Finally, let’s talk “science”. Members of the press stick up for the principles of science when it’s convenient and supports their beliefs, but otherwise attack science. Science says the same things about the autism-vaccine link as it does chiropractics, anti-oxidants, gluten-free, organic produce, and a whole lot of other subjects. The high-end grocery store Whole Foods is a shrine to anti-science, promoting all these things. Yet, many reporters I know shop at Whole Foods, for anti-oxidants and other nonsense.Whether or not you judge somebody as an “anti-science crazy” that should be ignored because of “false balance” depends entirely upon which scientific issue you are discussing.Thus, I’ve disproved your theory of “false-balance” three separate times here. Even while I agree that anti-vaxxers are crazy and shouldn’t be interviewed on the issue, I’ve nonetheless shown how the press is unable to deal with the either policy question or science question fairly, and moreover, uses this issue to unfairly smear politicians they don’t like.It’s not just the anti-vax issue that is the problem. Pick any partisan “false balance” issue, and it’ll have the same problem of media bias, where they justify their corrupt behavior.Half the population, even a large chunk of Democrats, agree with Trump’s idea that we should ban Muslims from coming into this country. I have as much distaste for this idea as you do, I hate it with unbridled passion. But here’s the thing: if half the population of the country believes a wrong thing, it’s by definition “reasonable”. It’s like in the old days when countries were split half-and-half between Protestantism and Catholicism. One side had to be wrong. They couldn’t accept the other half as reasonable, and took the scorched earth approach — literary scorching the fields during Europe’s religious wars that killed half the population. Today, there’s not a single Protestant on the Supreme Court, and nobody cares, because we’ve gotten past our differences. It’s where the term “bigotry” came from, about tolerating those who disagree with you.The same logic applies here. Instead of suppressing Trump’s supporters on the farcical claim of “false balance”, let’s bring them out into the light and debate this issue like reasonable people. Shouting them down for being racists, as we do now, changes neither their minds nor their votes. Tolerating them as being reasonable (but wrong) people, as they certainly are, can change minds. Let’s discuss Muslims we know. Let’s discuss how America is the shining light throughout the world for people yearning to be free, and how we sully ourselves by closing borders. Let’s argue our point as if it has to stand on its own merits, rather than being our ideology.Nicholas Kristof’s piece at the NYTimes lightly chides the press, for being too pure of heart to deal with the massive evil that is Trump. In truth, Trump is just an expression of the press’s evil nature. The press has suppressed and ignored a large section of the population. This has done nothing to change minds, and only caused grievances to fester, until a populist candidate came along. Had the press been less biased, less focused on attacking anybody of the wrong ideology, this anger would not have existed for Trump to tap into.Note: When I was a kid, my father was a journalist. One day, I opened our front door to find two people in burgundy robes on our door step, members of the cult of Bagwan Shree Rajneesh. They weren’t there to convert us, but instead, had accepted my dad’s invitation to dinner (he was writing articles about the Rajneeshees). “But these people are crazy cultists!!”, I exclaimed to my father. He then gave me a lecture on unfair biases, and how just because I believed they were wrong, it didn’t mean they were unreasonable people we couldn’t have dinner with.

How the media really created Trump

Post Syndicated from Robert Graham original http://blog.erratasec.com/2016/03/how-media-really-created-trump_26.html

This NYTimes op-ed claims to diagnose the press’s failings with regard to Trump, but in its first sentence demonstrates how little press understands the problem. The problem isn’t with Trump, but with the press.The reason for Trump is that the press has discarded its principle of “objectivity”. Reasonable people disagree. The failing of the press is that they misrepresent one side, the Republicans, as being unreasonable. You see that in the op-ed above, where the very first sentence decries the “Republican Party’s toxic manipulation of racial resentments”. In fact, both parties are equally reasonable, or unreasonable as the case may be, with regards to race.The article suggests the press should have done more to debunk Trump in the”form of fact checks and robust examination of policy proposals”. But the press doesn’t do that for Democrats, so why should a Republican candidate they don’t like get singled out? No amount of attacking Trump sticks because the press is blatantly unfair.Hillary clearly is complicit in the “Benghazi” affair, because she led the charge to inject weapons into Libya to take down Ghadaffi, then ignored Chris Steven’s efforts to clean up the mess. Hillary’s use of her own email server was clearly an attempt to bypass transparency rules and conduct underhanded diplomacy, as the now public emails show. Yes, it’s true that there are some invalid Republican attacks on these issues that are blatantly partisan. But the press is less interested in holding Hillary accountable for these failures, and more interested in portraying Republicans as unreasonable by focusing on those partisan attacks.Since the press doesn’t attack Obama or Hillary, the public will never see any attack against Trump as fair. The article points out that Politifact rates Trump as more dishonest than the other candidates. But that’s because it debunks virtually everything Trump says, while at the same time, not doing the same for Democrats. Populist rhetoric by any candidate should get the same treatment, but doesn’t. Trump is a populist demagogue, so of course what he says is going to have little relation to the truth, but nobody is going to believe this accusation when you are obviously so unfair about fact checking. Bernie is also a populist demagogue, but there’s little serious effort to debunk what he says.These biases I mention are obvious to anybody outside the system. I’m a Libertarian, so I have equal disdain for both parties. In theory, Libertarians slightly favor the Republican rhetoric on the free market, but since Republican politicians never deliver on this, we slightly favor Democrat practical results on individual freedoms (e.g. acceptance of homosexuality). My point is that as somebody with some objectivity on the parties, the inability of the press to be objective is obvious to me.Every time I bring this up, the press counters with “false balance“, a term they’ve concocted to justify their biases. So let’s pick the least partisan topic, that of “vaccines causing autism” to demonstrate the falseness of “false balance”.To start with, we agree that there’s absolutely no link between vaccines and autism, and that the science is clear on this, and that only crazy/stupid people would think their is a link.The thing is, the policy question is almost unrelated to the science question. Whatever the science says, the policy question is still whether the government can force people to get vaccines (or parents to vaccinate their child). There are two sides to this issue. On one side is the “choice” question of whether it’s a person’s choice what to do with their body. For example, in the abortion debate there is often the analogy of whether people can be forced to donate a kidney, or to give a bone marrow transplant. Moreover, while they don’t cause autism, vaccines do sometimes cause complications, so there is a risk (albeit tiny), to the person receiving the injection. On the other hand, vaccines are fundamentally unlike all other health issues, with vast benefits to be derived from “herd immunity” when everyone getting a vaccine. For example, the measles vaccine is imperfect, so when enough people shirk their duty to get vaccinated, even some vaccinated people may catch the disease.The point being is that we have a clear, two-sided policy debate here, quite apart from the crazies.More importantly is the way the press uses this issue to smear Republicans, in much the same way that I describe above with the way the NYTimes smear Republicans with race issues. Consider this story from CNN “Chris Christie sidesteps vaccine science“. All Christie said was, in response to the policy issue, that most of the time it’s the parent’s choice, which reporters unfairly extended to a position that “sidesteps science”. Obama’s spokesman said much the same thing only days prior to this event, but didn’t get smeared like Christie. In fact, whereas most candidates take the policy position that its always the parent’s choice, Christie took the position that sometimes the government can override parent’s choice when it’s important. But, that CNN article, and many other press articles at the time, smear Christie as somehow supporting anti-vaxxers.The press likewise ignore Democrats on this issue, who pander just as much to the anti-vaxxers as any Republicans. In 2008, candidate Obama said “We’ve seen just a skyrocketing autism rate. Some people are suspicious that it’s connected to the vaccines. This person included”. Candidate Hillary said “I am committed to make investments to find the causes of autism, including possible environmental causes like vaccines”. The science was as clear then as it is now that there’s no link.No politician (except Trump, of course) is on the anti-vax side, but at the same time, they don’t want to needlessly antagonize potential voters. Most take the policy position supporting parental/personal choice, but rather than condemning idiots/crazies for their bad science, simply say things like “well, as a parent, I get my kids vaccinated”. Trump, of course, goes full anti-vax, but once the press has already shown themselves to be corrupt and biased on this issue, what they say about Trump is no longer trusted.Finally, let’s talk “science”. Members of the press stick up for the principles of science when it’s convenient and supports their beliefs, but otherwise attack science. Science says the same things about the autism-vaccine link as it does chiropractics, anti-oxidants, gluten-free, organic produce, and a whole lot of other subjects. The high-end grocery store Whole Foods is a shrine to anti-science, promoting all these things. Yet, many reporters I know shop at Whole Foods, for anti-oxidants and other nonsense.Whether or not you judge somebody as an “anti-science crazy” that should be ignored because of “false balance” depends entirely upon which scientific issue you are discussing.Thus, I’ve disproved your theory of “false-balance” three separate times here. Even while I agree that anti-vaxxers are crazy and shouldn’t be interviewed on the issue, I’ve nonetheless shown how the press is unable to deal with the either policy question or science question fairly, and moreover, uses this issue to unfairly smear politicians they don’t like.It’s not just the anti-vax issue that is the problem. Pick any partisan “false balance” issue, and it’ll have the same problem of media bias, where they justify their corrupt behavior.Half the population, even a large chunk of Democrats, agree with Trump’s idea that we should ban Muslims from coming into this country. I have as much distaste for this idea as you do, I hate it with unbridled passion. But here’s the thing: if half the population of the country believes a wrong thing, it’s by definition “reasonable”. It’s like in the old days when countries were split half-and-half between Protestantism and Catholicism. One side had to be wrong. They couldn’t accept the other half as reasonable, and took the scorched earth approach — literary scorching the fields during Europe’s religious wars that killed half the population. Today, there’s not a single Protestant on the Supreme Court, and nobody cares, because we’ve gotten past our differences. It’s where the term “bigotry” came from, about tolerating those who disagree with you.The same logic applies here. Instead of suppressing Trump’s supporters on the farcical claim of “false balance”, let’s bring them out into the light and debate this issue like reasonable people. Shouting them down for being racists, as we do now, changes neither their minds nor their votes. Tolerating them as being reasonable (but wrong) people, as they certainly are, can change minds. Let’s discuss Muslims we know. Let’s discuss how America is the shining light throughout the world for people yearning to be free, and how we sully ourselves by closing borders. Let’s argue our point as if it has to stand on its own merits, rather than being our ideology.Nicholas Kristof’s piece at the NYTimes lightly chides the press, for being too pure of heart to deal with the massive evil that is Trump. In truth, Trump is just an expression of the press’s evil nature. The press has suppressed and ignored a large section of the population. This has done nothing to change minds, and only caused grievances to fester, until a populist candidate came along. Had the press been less biased, less focused on attacking anybody of the wrong ideology, this anger would not have existed for Trump to tap into.Note: When I was a kid, my father was a journalist. One day, I opened our front door to find two people in burgundy robes on our door step, members of the cult of Bagwan Shree Rajneesh. They weren’t there to convert us, but instead, had accepted my dad’s invitation to dinner (he was writing articles about the Rajneeshees). “But these people are crazy cultists!!”, I exclaimed to my father. He then gave me a lecture on unfair biases, and how just because I believed they were wrong, it didn’t mean they were unreasonable people we couldn’t have dinner with.

Subjective explainer: gun debate in the US

Post Syndicated from Michal Zalewski original http://lcamtuf.blogspot.com/2015/10/subjective-explainer-gun-debate-in-us.html

In the wake of the tragic events in Roseburg, I decided to briefly return to the topic of looking at the US culture from the perspective of a person born in Europe. In particular, I wanted to circle back to the topic of firearms.

Contrary to popular beliefs, the United States has witnessed a dramatic decline in violence over the past 20 years. In fact, when it comes to most types of violent crime – say, robbery, assault, or rape – the country now compares favorably to the UK and many other OECD nations. But as I explored in my earlier posts, one particular statistic – homicide – is still registering about three times as high as in many other places within the EU.

The homicide epidemic in the United States has a complex nature and overwhelmingly affects ethnic minorities and other disadvantaged social groups; perhaps because of this, the phenomenon sees very little honest, public scrutiny. It is propelled into the limelight only in the wake of spree shootings and other sickening, seemingly random acts of terror; such incidents, although statistically insignificant, take a profound mental toll on the American society. At the same time, the effects of high-profile violence seem strangely short-lived: they trigger a series of impassioned political speeches, invariably focusing on the connection between violence and guns – but the nation soon goes back to business as usual, knowing full well that another massacre will happen soon, perhaps the very same year.

On the face of it, this pattern defies all reason – angering my friends in Europe and upsetting many brilliant and well-educated progressives in the US. They utter frustrated remarks about the all-powerful gun lobby and the spineless politicians, blaming the partisan gridlock for the failure to pass even the most reasonable and toothless gun control laws. I used to be in the same camp; today, I think the reality is more complex than that.

To get to the bottom of this mystery, it helps to look at the spirit of radical individualism and classical liberalism that remains the national ethos of the United States – and in fact, is enjoying a degree of resurgence unseen for many decades prior. In Europe, it has long been settled that many individual liberties – be it the freedom of speech or the natural right to self-defense – can be constrained to advance even some fairly far-fetched communal goals. On the old continent, such sacrifices sometimes paid off, and sometimes led to atrocities; but the basic premise of European collectivism is not up for serious debate. In America, the same notion certainly cannot be taken for granted today.

When it comes to firearm ownership in particular, the country is facing a fundamental choice between two possible realities:

A largely disarmed society that depends on the state to protect it from almost all harm, and where citizens are generally not permitted to own guns without presenting a compelling cause. In this model, adopted by many European countries, firearms tend to be less available to common criminals – simply by the virtue of limited supply and comparatively high prices in black market trade. At the same time, it can be argued that any nation subscribing to this doctrine becomes more vulnerable to foreign invasion or domestic terror, should its government ever fail to provide adequate protection to all citizens. Disarmament can also limit civilian recourse against illegitimate, totalitarian governments – a seemingly outlandish concern, but also a very fresh memory for many European countries subjugated not long ago under the auspices of the Soviet Bloc.

A well-armed society where firearms are available to almost all competent adults, and where the natural right to self-defense is subject to few constraints. This is the model currently employed in the United States, where it arises from the straightfoward, originalist interpretation of the Second Amendment – as recognized by roughly 75% of all Americans and affirmed by the Supreme Court. When following such a doctrine, a country will likely witness greater resiliency in the face of calamities or totalitarian regimes. At the same time, its citizens might have to accept some inherent, non-trivial increase in violent crime due to the prospect of firearms more easily falling into the wrong hands.

It seems doubtful that a viable middle-ground approach can exist in the United States. With more than 300 million civilian firearms in circulation, most of them in unknown hands, the premise of reducing crime through gun control would inevitably and critically depend on some form of confiscation; without such drastic steps, the supply of firearms to the criminal underground or to unfit individuals would not be disrupted in any meaningful way. Because of this, intellectual integrity requires us to look at many of the legislative proposals not only through the prism of their immediate utility, but also to give consideration to the societal model they are likely to advance.

And herein lies the problem: many of the current “common-sense” gun control proposals have very little merit when considered in isolation. There is scant evidence that reinstating the ban on military-looking semi-automatic rifles (“assault weapons”), or rolling out the prohibition on private sales at gun shows, would deliver measurable results. There is also no compelling reason to believe that ammo taxes, firearm owner liability insurance, mandatory gun store cameras, firearm-free school zones, bans on open carry, or federal gun registration can have any impact on violent crime. And so, the debate often plays out like this:

At the same time, by the virtue of making weapons more difficult, expensive, and burdensome to own, many of the legislative proposals floated by progressives would probably gradually erode the US gun culture; intentionally or not, their long-term outcome would be a society less passionate about firearms and more willing to follow in the footsteps of Australia or the UK. Only as we cross that line and confiscate hundreds of millions of guns, it’s fathomable – yet still far from certain – that we would see a sharp drop in homicides.

This method of inquiry helps explain the visceral response from gun rights advocates: given the legislation’s dubious benefits and its predicted long-term consequences, many pro-gun folks are genuinely worried that making concessions would eventually mean giving up one of their cherished civil liberties – and on some level, they are right.

Some feel that this argument is a fallacy, a tell tale invented by a sinister corporate “gun lobby” to derail the political debate for personal gain. But the evidence of such a conspiracy is hard to find; in fact, it seems that the progressives themselves often fan the flames. In the wake of Roseburg, both Barack Obama and Hillary Clinton came out praising the confiscation-based gun control regimes employed in Australia and the UK – and said that they would like the US to follow suit. Depending on where you stand on the issue, it was either an accidental display of political naivete, or the final reveal of their sinister plan. For the latter camp, the ultimate proof of a progressive agenda came a bit later: in response to the terrorist attack in San Bernardino, several eminent Democratic-leaning newspapers published scathing editorials demanding civilian disarmament while downplaying the attackers’ connection to Islamic State.

Another factor that poisons the debate is that despite being highly educated and eloquent, the progressive proponents of gun control measures are often hopelessly unfamiliar with the very devices they are trying to outlaw:

I’m reminded of the widespread contempt faced by Senator Ted Stevens following his attempt to compare the Internet to a “series of tubes” as he was arguing against net neutrality. His analogy wasn’t very wrong – it just struck a nerve as simplistic and out-of-date. My progressive friends did not react the same way when Representative Carolyn McCarthy – one of the key proponents of the ban on assault weapons – showed no understanding of the supposedly lethal firearm features she was trying to eradicate. Such bloopers are not rare, too; not long ago, Mr. Bloomberg, one of the leading progressive voices on gun control in America, argued against semi-automatic rifles without understanding how they differ from the already-illegal machine guns:

Yet another example comes Representative Diana DeGette, the lead sponsor of a “common-sense” bill that sought to prohibit the manufacture of magazines with capacity over 15 rounds. She defended the merits of her legislation while clearly not understanding how a magazine differs from ammunition – or that the former can be reused:

“I will tell you these are ammunition, they’re bullets, so the people who have those know they’re going to shoot them, so if you ban them in the future, the number of these high capacity magazines is going to decrease dramatically over time because the bullets will have been shot and there won’t be any more available.”

Treating gun ownership with almost comical condescension has become vogue among a good number of progressive liberals. On a campaign stop in San Francisco, Mr. Obama sketched a caricature of bitter, rural voters who “cling to guns or religion or antipathy to people who aren’t like them”. Not much later, one Pulitzer Prize-winning columnist for The Washington Post spoke of the Second Amendment as “the refuge of bumpkins and yeehaws who like to think they are protecting their homes against imagined swarthy marauders desperate to steal their flea-bitten sofas from their rotting front porches”. Many of the newspaper’s readers probably had a good laugh – and then wondered why it has gotten so difficult to seek sensible compromise.

There are countless dubious and polarizing claims made by the supporters of gun rights, too; examples include a recent NRA-backed tirade by Dana Loesch denouncing the “godless left”, or the constant onslaught of conspiracy theories spewed by Alex Jones and Glenn Beck. But when introducing new legislation, the burden of making educated and thoughtful arguments should rest on its proponents, not other citizens. When folks such as Bloomberg prescribe sweeping changes to the American society while demonstrating striking ignorance about the topics they want to regulate, they come across as elitist and flippant – and deservedly so.

Given how controversial the topic is, I think it’s wise to start an open, national conversation about the European model of gun control and the risks and benefits of living in an unarmed society. But it’s also likely that such a debate wouldn’t last very long. Progressive politicians like to say that the dialogue is impossible because of the undue influence of the National Rifle Association – but as I discussed in my earlier blog posts, the organization’s financial resources and power are often overstated: it does not even make it onto the list of top 100 lobbyists in Washington, and its support comes mostly from member dues, not from shadowy business interests or wealthy oligarchs. In reality, disarmament just happens to be a very unpopular policy in America today: the support for gun ownership is very strong and has been growing over the past 20 years – even though hunting is on the decline.

Perhaps it would serve the progressive movement better to embrace the gun culture – and then think of ways to curb its unwanted costs. Addressing inner-city violence, especially among the disadvantaged youth, would quickly bring the US homicide rate much closer to the rest of the highly developed world. But admitting the staggering scale of this social problem can be an uncomfortable and politically charged position to hold. For Democrats, it would be tantamount to singling out minorities. For Republicans, it would be just another expansion of the nanny state.

PS. If you are interested in a more systematic evaluation of the scale, the impact, and the politics of gun ownership in the United States, you may enjoy an earlier entry on this blog. Or, if you prefer to read my entire series comparing the life in Europe and in the US, try this link.

Subjective explainer: gun debate in the US

Post Syndicated from Michal Zalewski original http://lcamtuf.blogspot.com/2015/10/subjective-explainer-gun-debate-in-us.html

In the wake of the tragic events in Roseburg, I decided to briefly return to the topic of looking at the US culture from the perspective of a person born in Europe. In particular, I wanted to circle back to the topic of firearms.

Contrary to popular beliefs, the United States has witnessed a dramatic decline in violence over the past 20 years. In fact, when it comes to most types of violent crime – say, robbery, assault, or rape – the country now compares favorably to the UK and many other OECD nations. But as I explored in my earlier posts, one particular statistic – homicide – is still registering about three times as high as in many other places within the EU.

The homicide epidemic in the United States has a complex nature and overwhelmingly affects ethnic minorities and other disadvantaged social groups; perhaps because of this, the phenomenon sees very little honest, public scrutiny. It is propelled into the limelight only in the wake of spree shootings and other sickening, seemingly random acts of terror; such incidents, although statistically insignificant, take a profound mental toll on the American society. At the same time, the effects of high-profile violence seem strangely short-lived: they trigger a series of impassioned political speeches, invariably focusing on the connection between violence and guns – but the nation soon goes back to business as usual, knowing full well that another massacre will happen soon, perhaps the very same year.

On the face of it, this pattern defies all reason – angering my friends in Europe and upsetting many brilliant and well-educated progressives in the US. They utter frustrated remarks about the all-powerful gun lobby and the spineless politicians, blaming the partisan gridlock for the failure to pass even the most reasonable and toothless gun control laws. I used to be in the same camp; today, I think the reality is more complex than that.

To get to the bottom of this mystery, it helps to look at the spirit of radical individualism and classical liberalism that remains the national ethos of the United States – and in fact, is enjoying a degree of resurgence unseen for many decades prior. In Europe, it has long been settled that many individual liberties – be it the freedom of speech or the natural right to self-defense – can be constrained to advance even some fairly far-fetched communal goals. On the old continent, such sacrifices sometimes paid off, and sometimes led to atrocities; but the basic premise of European collectivism is not up for serious debate. In America, the same notion certainly cannot be taken for granted today.

When it comes to firearm ownership in particular, the country is facing a fundamental choice between two possible realities:

A largely disarmed society that depends on the state to protect it from almost all harm, and where citizens are generally not permitted to own guns without presenting a compelling cause. In this model, adopted by many European countries, firearms tend to be less available to common criminals – simply by the virtue of limited supply and comparatively high prices in black market trade. At the same time, it can be argued that any nation subscribing to this doctrine becomes more vulnerable to foreign invasion or domestic terror, should its government ever fail to provide adequate protection to all citizens. Disarmament can also limit civilian recourse against illegitimate, totalitarian governments – a seemingly outlandish concern, but also a very fresh memory for many European countries subjugated not long ago under the auspices of the Soviet Bloc.

A well-armed society where firearms are available to almost all competent adults, and where the natural right to self-defense is subject to few constraints. This is the model currently employed in the United States, where it arises from the straightfoward, originalist interpretation of the Second Amendment – as recognized by roughly 75% of all Americans and affirmed by the Supreme Court. When following such a doctrine, a country will likely witness greater resiliency in the face of calamities or totalitarian regimes. At the same time, its citizens might have to accept some inherent, non-trivial increase in violent crime due to the prospect of firearms more easily falling into the wrong hands.

It seems doubtful that a viable middle-ground approach can exist in the United States. With more than 300 million civilian firearms in circulation, most of them in unknown hands, the premise of reducing crime through gun control would inevitably and critically depend on some form of confiscation; without such drastic steps, the supply of firearms to the criminal underground or to unfit individuals would not be disrupted in any meaningful way. Because of this, intellectual integrity requires us to look at many of the legislative proposals not only through the prism of their immediate utility, but also to give consideration to the societal model they are likely to advance.

And herein lies the problem: many of the current “common-sense” gun control proposals have very little merit when considered in isolation. There is scant evidence that reinstating the ban on military-looking semi-automatic rifles (“assault weapons”), or rolling out the prohibition on private sales at gun shows, would deliver measurable results. There is also no compelling reason to believe that ammo taxes, firearm owner liability insurance, mandatory gun store cameras, firearm-free school zones, bans on open carry, or federal gun registration can have any impact on violent crime. And so, the debate often plays out like this:

At the same time, by the virtue of making weapons more difficult, expensive, and burdensome to own, many of the legislative proposals floated by progressives would probably gradually erode the US gun culture; intentionally or not, their long-term outcome would be a society less passionate about firearms and more willing to follow in the footsteps of Australia or the UK. Only as we cross that line and confiscate hundreds of millions of guns, it’s fathomable – yet still far from certain – that we would see a sharp drop in homicides.

This method of inquiry helps explain the visceral response from gun rights advocates: given the legislation’s dubious benefits and its predicted long-term consequences, many pro-gun folks are genuinely worried that making concessions would eventually mean giving up one of their cherished civil liberties – and on some level, they are right.

Some feel that this argument is a fallacy, a tell tale invented by a sinister corporate “gun lobby” to derail the political debate for personal gain. But the evidence of such a conspiracy is hard to find; in fact, it seems that the progressives themselves often fan the flames. In the wake of Roseburg, both Barack Obama and Hillary Clinton came out praising the confiscation-based gun control regimes employed in Australia and the UK – and said that they would like the US to follow suit. Depending on where you stand on the issue, it was either an accidental display of political naivete, or the final reveal of their sinister plan. For the latter camp, the ultimate proof of a progressive agenda came a bit later: in response to the terrorist attack in San Bernardino, several eminent Democratic-leaning newspapers published scathing editorials demanding civilian disarmament while downplaying the attackers’ connection to Islamic State.

Another factor that poisons the debate is that despite being highly educated and eloquent, the progressive proponents of gun control measures are often hopelessly unfamiliar with the very devices they are trying to outlaw:

I’m reminded of the widespread contempt faced by Senator Ted Stevens following his attempt to compare the Internet to a “series of tubes” as he was arguing against net neutrality. His analogy wasn’t very wrong – it just struck a nerve as simplistic and out-of-date. My progressive friends did not react the same way when Representative Carolyn McCarthy – one of the key proponents of the ban on assault weapons – showed no understanding of the supposedly lethal firearm features she was trying to eradicate. Such bloopers are not rare, too; not long ago, Mr. Bloomberg, one of the leading progressive voices on gun control in America, argued against semi-automatic rifles without understanding how they differ from the already-illegal machine guns:

Yet another example comes Representative Diana DeGette, the lead sponsor of a “common-sense” bill that sought to prohibit the manufacture of magazines with capacity over 15 rounds. She defended the merits of her legislation while clearly not understanding how a magazine differs from ammunition – or that the former can be reused:

“I will tell you these are ammunition, they’re bullets, so the people who have those know they’re going to shoot them, so if you ban them in the future, the number of these high capacity magazines is going to decrease dramatically over time because the bullets will have been shot and there won’t be any more available.”

Treating gun ownership with almost comical condescension has become vogue among a good number of progressive liberals. On a campaign stop in San Francisco, Mr. Obama sketched a caricature of bitter, rural voters who “cling to guns or religion or antipathy to people who aren’t like them”. Not much later, one Pulitzer Prize-winning columnist for The Washington Post spoke of the Second Amendment as “the refuge of bumpkins and yeehaws who like to think they are protecting their homes against imagined swarthy marauders desperate to steal their flea-bitten sofas from their rotting front porches”. Many of the newspaper’s readers probably had a good laugh – and then wondered why it has gotten so difficult to seek sensible compromise.

There are countless dubious and polarizing claims made by the supporters of gun rights, too; examples include a recent NRA-backed tirade by Dana Loesch denouncing the “godless left”, or the constant onslaught of conspiracy theories spewed by Alex Jones and Glenn Beck. But when introducing new legislation, the burden of making educated and thoughtful arguments should rest on its proponents, not other citizens. When folks such as Bloomberg prescribe sweeping changes to the American society while demonstrating striking ignorance about the topics they want to regulate, they come across as elitist and flippant – and deservedly so.

Given how controversial the topic is, I think it’s wise to start an open, national conversation about the European model of gun control and the risks and benefits of living in an unarmed society. But it’s also likely that such a debate wouldn’t last very long. Progressive politicians like to say that the dialogue is impossible because of the undue influence of the National Rifle Association – but as I discussed in my earlier blog posts, the organization’s financial resources and power are often overstated: it does not even make it onto the list of top 100 lobbyists in Washington, and its support comes mostly from member dues, not from shadowy business interests or wealthy oligarchs. In reality, disarmament just happens to be a very unpopular policy in America today: the support for gun ownership is very strong and has been growing over the past 20 years – even though hunting is on the decline.

Perhaps it would serve the progressive movement better to embrace the gun culture – and then think of ways to curb its unwanted costs. Addressing inner-city violence, especially among the disadvantaged youth, would quickly bring the US homicide rate much closer to the rest of the highly developed world. But admitting the staggering scale of this social problem can be an uncomfortable and politically charged position to hold. For Democrats, it would be tantamount to singling out minorities. For Republicans, it would be just another expansion of the nanny state.

PS. If you are interested in a more systematic evaluation of the scale, the impact, and the politics of gun ownership in the United States, you may enjoy an earlier entry on this blog. Or, if you prefer to read my entire series comparing the life in Europe and in the US, try this link.

Did You Actually Read the Lower Court’s Decision?

Post Syndicated from Bradley M. Kuhn original http://ebb.org/bkuhn/blog/2015/07/04/did-you-read.html

I’m seeing plenty of people, including some non-profit organizations along
with the usual punditocracy, opining on
the USA
Supreme Court’s denial for a writ of certiorari in the Oracle v. Google
copyright infringement case
. And, it’s not that I expect everyone in
the world to read my blog, but I’m amazed that people who should know
better haven’t bothered to even read the lower Court’s decision, which is
de-facto upheld upon denial by the Supreme Court to hear the appeal.

I wrote at great
length about why the decision isn’t actually a decision about whether
APIs are copyrightable
, and that the decision actually gives us some
good clarity with regard to the issue of combined work distribution
(i.e., when you distribute your own works with the copyrighted material
of others combined into a single program). The basic summary of the blog
post I linked to above is simply: The lower Court seemed genially
confused about whether Google copy-and-pasted code, as the original trial
seems to have inappropriately conflated API reimplemenation with code
cut-and-paste.

No one else has addressed this nuance of the lower Court’s decision in the
year since the decision came down, and I suspect that’s because in our
TL;DR 24-hour-news cycle, it’s much easier for the pundits and
organizations tangentially involved with this issue to get a bunch of press
over giving confusing information.

So, I’m mainly making this blog post to encourage people
to go back and read
the decision and my blog post about it
. I’d be delighted to debate
people if they think I misread the decision, but I won’t debate you
unless you assure me
you read
the lower Court’s decision in its entirety
. I think that leaves
virtually no one who will. :-/

Poland vs the United States: civil liberties

Post Syndicated from Michal Zalewski original http://lcamtuf.blogspot.com/2015/06/poland-vs-united-states-civil-liberties.html

This is the sixth article in a short series about Poland, Europe, and the United States. To explore the entire series, start here.

I opened my comparison of Poland and the US with the topic of firearm ownership. I decided to take this route in part because of how alien the US gun culture may appear to outsiders – and because of how polarizing and interesting the subject is. But in today’s entry, I wanted to take a step back and have a look at the other, more traditional civil liberties that will be more familiar to folks on the other side of the pond.

Before we dive in, it is probably important to note that the national ethos of the United States is very expressly built on the tradition of radical individualism and free enterprise – as championed by thinkers such as Milton Friedman, Friedrich Hayek, or Adam Smith. Of course, many words can be written about the disconnect between this romanticized vision and complex realities of entrepreneurship or social mobility in the face of multi-generational poverty – but the perception still counts: in much of Europe, the government is seen less as a guarantor of civil liberties, and more as a provider of basic needs. The inverse is more true in the US; the armed forces and small businesses enjoy the two top spots in institutional trustworthiness surveys; federal legislators come dead last. This sentiment shapes many of the ongoing political debates – not just around individual freedoms, but also as related to public healthcare or the regulation of commerce. The virtues of self-sufficiency and laissez-faire capitalism seem far more self-evident to the citizens of the US than they are in the EU.

With that in mind, it’s worthwhile to start the comparison with the freedom of speech. A cherished tradition in the western world, this liberty is nevertheless subordinate to a number of collectivist social engineering goals across the whole old continent; for example, strong prohibitions exist on the promotion of Nazi ideology or symbolism, or on the mere practice of denying the Holocaust. The freedom of speech is also broadly trumped by the right to privacy, including the hotly-debated right to be forgotten on the Internet. Other, more exotic restrictions implemented in several places in Europe include the prohibition against disrespecting the religious beliefs of others or insulting any acting head of state; in Poland, people have been prosecuted for hurling childish insults at the Pope or at the outgoing Polish president. Of course, the enforcement is patently selective: in today’s political climate, no one will be charged for calling Mr. Putin a thug.

The US takes a more absolutist view of the First Amendment, with many hate groups enjoying far-reaching impunity enshrined in the judicial standards put forward not by politicians, but by the unusually powerful US Supreme Court. The notion of “speech” is also interpreted very broadly, extending to many forms of artistic, religious, and political expression; in particular, the European niqab and burka bans would be patently illegal in the United States and aren’t even the subject of serious debate. The concept of homeschooling, banned or heavily regulated in some parts of Europe, is seen by some through the same constitutional prism: it is your right to teach your children about Young Earth creationism, and the right trumps any concerns over the purported social costs. Last but not least, there is the controversial Citizens United decision, holding that some forms of financial support provided to political causes can be equated with constitutionally protected speech; again, the ruling came not from the easily influenced politicians, but from the Supreme Court.

As an aside, despite the use of freedom-of-speech restrictions as a tool for rooting out anti-Semitism and hate speech in Europe, the contemporary US may be providing a less fertile ground for racism and xenophobia than at least some parts of the EU. The country still struggles with its dark past and the murky reality of racial discrimination – but despite the stereotypes, the incidence of at least some types of casual racism in today’s America seems lower than in much of Europe. The pattern is also evident in political discourse; many of the openly xenophobic opinions or legislative proposals put forward by European populist politicians would face broad condemnation in the US. Some authors argue that the old continent is facing a profound new wave of Islamophobia and
hatred toward Jews; in countries such as Greece and Hungary, more than 60% of population seems to be holding such views. In Poland, more than 40% say that Jews hold too much influence in business – a surreal claim, given that that there are just several thousand Jews living in the country of 38 million. My own memories from growing up in that country are that of schoolkids almost universally using “you Jew!” as a mortal insult. The defacement of Jewish graves and monuments, or anti-Semitic graffiti, posters, and sports chants are far more common than they should be. It’s difficult to understand if restrictions on free speech suppress the sentiments or make them worse, but at the very least, the success of the policies is not clear-cut.

Other civil liberties revered in the United States, and perhaps less so in Europe, put limits on the ability of the government to intrude into private lives through unwarranted searches and seizures. Of course, the stereotypical view of the US is that of a dystopian surveillance state, epitomized by the recent focus on warrantless surveillance or secret FISA courts. But having worked for a telecommunications company in Poland, my own sentiment is that in Europe, surveillance tends to be done with more impunity, far less legal oversight, and without clear delination between law enforcement and intelligence work. The intelligence community in particular is often engaged in domestic investigations against businesses, politicians, and journalists – and all across Europe, “pre-crime” policing ideas are taking hold.

In many European countries, citizens are not afforded powerful tools such as FOIA requests, do not benefit from a tradition of protected investigative journalism and whistleblowing, and can’t work with influential organizations such as the American Civil Liberties Union; there is also no history of scandals nearly as dramatic and transformative as Watergate. In the States, I feel that all this helped to create an imperfect but precious balance between the needs of the government and the rights of the people – and instill higher ethical standards in the law enforcement and intelligence community; it is telling that the revelations from Snowden, while exposing phenomenal and somewhat frightening surveillance capabilities of the NSA, have not surfaced any evidence of politically-motivated investigations or other blatant impropriety in how the capabilities are being used by the agency. The individualist spirit probably helps here, too: quite a few states and municipalities go as far as banning traffic enforcement cameras because of how they rob suspects of the ability to face the accuser in court.

When it comes to some other civil traditions that are sacrosanct in Europe, the United States needs to face justified criticism. The harsh and overcrowded penal system treats some offenders unfairly; it is a product of populist sentiments influenced by the crime waves of the twentieth century and fueled by the dysfunctional War on Drugs. While Polish prisons may not be much better, some of the ideas implemented elsewhere in Europe seem to make a clear difference. They are difficult to adopt in the States chiefly because they do not fit the folksy “tough on crime” image that many American politicians take pride in.

In the same vein, police brutality, disproportionately faced by the poor and the minorities, is another black mark for individual rights. The death penalty, albeit infrequent and reserved for most heinous crimes, stands on shaky moral grounds – even if it faces steady public support. The indefinite detention and torture of terrorism suspects, with the knowledge and complicity of many other European states, deserves nothing but scorn. Civil forfeiture is a bizarre concept that seems to violate the spirit of the Fourth Amendment by applying unreasonably relaxed standards for certain types of seizures – although in all likelihood, its days are coming to an end.

As usual, the picture is complex and it’s hard to declare the superiority of any single approach to individual liberties. Europe and the United States have much in common, but also differ in very interesting ways.

For the next article in the series, click here.

Poland vs the United States: civil liberties

Post Syndicated from Michal Zalewski original http://lcamtuf.blogspot.com/2015/06/poland-vs-united-states-civil-liberties.html

This is the sixth article in a short series about Poland, Europe, and the United States. To explore the entire series, start here.

I opened my comparison of Poland and the US with the topic of firearm ownership. I decided to take this route in part because of how alien the US gun culture may appear to outsiders – and because of how polarizing and interesting the subject is. But in today’s entry, I wanted to take a step back and have a look at the other, more traditional civil liberties that will be more familiar to folks on the other side of the pond.

Before we dive in, it is probably important to note that the national ethos of the United States is very expressly built on the tradition of radical individualism and free enterprise – as championed by thinkers such as Milton Friedman, Friedrich Hayek, or Adam Smith. Of course, many words can be written about the disconnect between this romanticized vision and complex realities of entrepreneurship or social mobility in the face of multi-generational poverty – but the perception still counts: in much of Europe, the government is seen less as a guarantor of civil liberties, and more as a provider of basic needs. The inverse is more true in the US; the armed forces and small businesses enjoy the two top spots in institutional trustworthiness surveys; federal legislators come dead last. This sentiment shapes many of the ongoing political debates – not just around individual freedoms, but also as related to public healthcare or the regulation of commerce. The virtues of self-sufficiency and laissez-faire capitalism seem far more self-evident to the citizens of the US than they are in the EU.

With that in mind, it’s worthwhile to start the comparison with the freedom of speech. A cherished tradition in the western world, this liberty is nevertheless subordinate to a number of collectivist social engineering goals across the whole old continent; for example, strong prohibitions exist on the promotion of Nazi ideology or symbolism, or on the mere practice of denying the Holocaust. The freedom of speech is also broadly trumped by the right to privacy, including the hotly-debated right to be forgotten on the Internet. Other, more exotic restrictions implemented in several places in Europe include the prohibition against disrespecting the religious beliefs of others or insulting any acting head of state; in Poland, people have been prosecuted for hurling childish insults at the Pope or at the outgoing Polish president. Of course, the enforcement is patently selective: in today’s political climate, no one will be charged for calling Mr. Putin a thug.

The US takes a more absolutist view of the First Amendment, with many hate groups enjoying far-reaching impunity enshrined in the judicial standards put forward not by politicians, but by the unusually powerful US Supreme Court. The notion of “speech” is also interpreted very broadly, extending to many forms of artistic, religious, and political expression; in particular, the European niqab and burka bans would be patently illegal in the United States and aren’t even the subject of serious debate. The concept of homeschooling, banned or heavily regulated in some parts of Europe, is seen by some through the same constitutional prism: it is your right to teach your children about Young Earth creationism, and the right trumps any concerns over the purported social costs. Last but not least, there is the controversial Citizens United decision, holding that some forms of financial support provided to political causes can be equated with constitutionally protected speech; again, the ruling came not from the easily influenced politicians, but from the Supreme Court.

As an aside, despite the use of freedom-of-speech restrictions as a tool for rooting out anti-Semitism and hate speech in Europe, the contemporary US may be providing a less fertile ground for racism and xenophobia than at least some parts of the EU. The country still struggles with its dark past and the murky reality of racial discrimination – but despite the stereotypes, the incidence of at least some types of casual racism in today’s America seems lower than in much of Europe. The pattern is also evident in political discourse; many of the openly xenophobic opinions or legislative proposals put forward by European populist politicians would face broad condemnation in the US. Some authors argue that the old continent is facing a profound new wave of Islamophobia and
hatred toward Jews; in countries such as Greece and Hungary, more than 60% of population seems to be holding such views. In Poland, more than 40% say that Jews hold too much influence in business – a surreal claim, given that that there are just several thousand Jews living in the country of 38 million. My own memories from growing up in that country are that of schoolkids almost universally using “you Jew!” as a mortal insult. The defacement of Jewish graves and monuments, or anti-Semitic graffiti, posters, and sports chants are far more common than they should be. It’s difficult to understand if restrictions on free speech suppress the sentiments or make them worse, but at the very least, the success of the policies is not clear-cut.

Other civil liberties revered in the United States, and perhaps less so in Europe, put limits on the ability of the government to intrude into private lives through unwarranted searches and seizures. Of course, the stereotypical view of the US is that of a dystopian surveillance state, epitomized by the recent focus on warrantless surveillance or secret FISA courts. But having worked for a telecommunications company in Poland, my own sentiment is that in Europe, surveillance tends to be done with more impunity, far less legal oversight, and without clear delination between law enforcement and intelligence work. The intelligence community in particular is often engaged in domestic investigations against businesses, politicians, and journalists – and all across Europe, “pre-crime” policing ideas are taking hold.

In many European countries, citizens are not afforded powerful tools such as FOIA requests, do not benefit from a tradition of protected investigative journalism and whistleblowing, and can’t work with influential organizations such as the American Civil Liberties Union; there is also no history of scandals nearly as dramatic and transformative as Watergate. In the States, I feel that all this helped to create an imperfect but precious balance between the needs of the government and the rights of the people – and instill higher ethical standards in the law enforcement and intelligence community; it is telling that the revelations from Snowden, while exposing phenomenal and somewhat frightening surveillance capabilities of the NSA, have not surfaced any evidence of politically-motivated investigations or other blatant impropriety in how the capabilities are being used by the agency. The individualist spirit probably helps here, too: quite a few states and municipalities go as far as banning traffic enforcement cameras because of how they rob suspects of the ability to face the accuser in court.

When it comes to some other civil traditions that are sacrosanct in Europe, the United States needs to face justified criticism. The harsh and overcrowded penal system treats some offenders unfairly; it is a product of populist sentiments influenced by the crime waves of the twentieth century and fueled by the dysfunctional War on Drugs. While Polish prisons may not be much better, some of the ideas implemented elsewhere in Europe seem to make a clear difference. They are difficult to adopt in the States chiefly because they do not fit the folksy “tough on crime” image that many American politicians take pride in.

In the same vein, police brutality, disproportionately faced by the poor and the minorities, is another black mark for individual rights. The death penalty, albeit infrequent and reserved for most heinous crimes, stands on shaky moral grounds – even if it faces steady public support. The indefinite detention and torture of terrorism suspects, with the knowledge and complicity of many other European states, deserves nothing but scorn. Civil forfeiture is a bizarre concept that seems to violate the spirit of the Fourth Amendment by applying unreasonably relaxed standards for certain types of seizures – although in all likelihood, its days are coming to an end.

As usual, the picture is complex and it’s hard to declare the superiority of any single approach to individual liberties. Europe and the United States have much in common, but also differ in very interesting ways.

For the next article in the series, click here.

Poland vs the United States: firearms

Post Syndicated from Michal Zalewski original http://lcamtuf.blogspot.com/2015/06/poland-vs-united-states-firearms.html

This is the fourth article in a short series about Poland, Europe, and the United States. To explore the entire series, click here.

I spent roughly half of my adult life in Poland; for the other half, we lived in the United States. Because of this, my Polish friends sometimes ask about the cultural differences between the two countries. I always struggle to answer on the spot, so I decided to explore some of the most striking dissimilarities in a series of short blog posts. It’s only fitting to start with guns.

Although you won’t see this brought up by any gun control advocate, Poland has long had some of the strictest firearms regimes in the world – surpassed only by a handful of countries such as Rwanda, Niger, Japan, and North Korea. The roots of this policy are difficult to pinpoint, but it may have had to do with the years of foreign partitions, followed by the Soviet-imposed communist rule; in those trying times, private militias must have been seen as a grave threat to the social order and to the personal safety of the ruling class. Whatever the original reasoning, the effects are plain to see: in today’s Poland, there is almost no tradition of gun ownership or hobby shooting sports; the country averages just around one firearm per 100 residents, compared to almost seven in the UK, fifteen in Australia, sixteen in the Czech Republic, or thirty in Austria, Iceland, Finland, and Germany. It’s likely that most Poles do not even know anyone who legally owns a gun.

In many ways, the United States may seem like the polar opposite: we have enough privately-owned firearms to equip every single man, woman, and child. In much of the country, there is no permitting process for new purchases and no registration requirements for handguns, rifles, or shotguns. The weapons can be bought at trade shows, given to family members, or loaned to friends. Long guns and ammo can be bought in sporting stores or at Walmart. And sure, if you want to have AR-15 just because it looks like fun, you can; indeed, many people get it for that reason alone.

In America, the right to bear arms is an ancient tradition going all the way back to the early days of the republic. Its constitutional standing is not very different from that of freedom of speech; there is ample evidence that the Founding Fathers envisioned the Second Amendment as the ultimate way to forever protect all other personal liberties, to resist feudal subjugation, and as to ensure the sovereignty of the fledgling country. Although several other, collectivist interpretations of the Second Amendment have been put forward by progressive thinkers, their efforts have not been successful; today, roughly 75% of all Americans believe that the Constitution gives them a well-defined, individual right to own a gun, and the Supreme Court has sided with their views.

In the minds of some citizens, the Second Amendment is still the only thing that stands between freedom and tyranny, be it at the hands of foreign powers or their own government run amok; but for many others, gun ownership is simply an empowering family hobby pursued at any of the tens of thousands shooting ranges all across the United States. In a country populated far less densely than Europe, there is also a clear utilitarian aspect to it all: especially for rural populations, rifles are seen as a necessity for defending one’s property against wild animals or scaring away criminals or drunken thugs. Across much of the US, the right to protect yourself with deadly force – without having to retreat or to submit to an assailant – is seen as a fundamental human right.

Of course, all this comes at a price: even though it is overall a very safe country, the US leads the highly developed world in homicides, the bulk of which are committed with guns. The causes of this phenomenon are complex, deeply intertwined with the American psyche and the unique structure of the society; the fashionable practice of placing the blame squarely on the easy availability of firearms does not hold up to closer scrutiny. Nevertheless, it would be dishonest to claim that broad gun ownership comes at no cost to the American public. Some of the most vivid pictures seared into people’s minds are the infrequent but soul-crushing school shootings. A more everyday occurrence are police encounters that end tragically because of the presumption that any suspects – even children – may be armed to their teeth.

Over the last century, the worries about gun violence – the bulk of which traces back to drug trade and gang activity – has led to increasing federal and state regulation of firearms. It is probable that some of these rules ended up saving lives with little practical harm to civil liberties; examples of this may include restrictions on fully-automatic weapons or the requirement for seamless background checks. But many other legislative efforts attempted to dismantle or substantially reinterpret the Second Amendment in an emotional response to individual tragedies – and without having an honest, national debate about the amendment’s lasting value to the American society. One can mention Chicago, Washington D.C., and San Francisco, all of which attempted to impose blanket bans on handgun ownership. Another good example is New Orleans, where the officials went as far as going door to door and forcibly confiscating firearms in the wake of hurricane Katrina; their intentions may have been pure, but in light of the case law and the prevailing libertarian sentiments that still resonate with many Americans, the wisdom of that gun grab seemed dubious at best.

In recent years, such zealous approaches inevitably meet their end in the courtroom – as noted earlier, judges, much to gun control advocates’ chagrin, see the awkwardly-worded Second Amendment as a proclamation of a very clear, individual right. If anything, the zeal of anti-gun activists has made it harder to have a reasonable discussion about gun rights, and enshrined the confusing and half-baked status quo. The constant onslaught of hastily-written legislation, coupled with erratic enforcement of the existing statutes, creates a toxic atmosphere where many firearms enthusiasts and interest groups feel that their freedom is under assault – and that the only way to avoid gradual erosion of constitutional rights is to fight each and every new proposal tooth and nail. One of the sticking points for the National Rifle Association is that federal gun registries would make it easy for the “baddies” to confiscate all firearms in the country. To many, this seemingly preposterous idea rings a lot less hollow after the New Orleans incident.

In Europe, and in Poland in particular, gun laws in the US are often seen as a deranged product of a powerful gun lobby that works against the will and to the detriment of normal citizens; some progressive politicians, scholars, and pundits in the US adopt the same view, demanding new gun restrictions without first winning the hearts and minds of fellow Americans. But when buying into this narrative, it is easy to overlook that the lobby in question is funded chiefly not by large corporations or the super-rich, but by ordinary citizens – and that it enjoys steady popular support, with approval ratings far higher than most politicians can claim.

In my younger years, I remember being entranced by “Bowling for Columbine”, viscerally hating the National Rifle Association, and shaking my head in disbelief at the stereotype of gun-totting, trigger-happy Americans. Today, I see the reality as far more nuanced – and if forced to take sides in this fascinating and emotional clash between collectivism and civil rights, I’m far less certain that collectivism would get my vote.

The article continues with a closer look at the costs and politics of gun ownership in the US; for the second part, click here.

Poland vs the United States: firearms

Post Syndicated from Michal Zalewski original http://lcamtuf.blogspot.com/2015/06/poland-vs-united-states-firearms.html

This is the fourth article in a short series about Poland, Europe, and the United States. To explore the entire series, click here.

I spent roughly half of my adult life in Poland; for the other half, we lived in the United States. Because of this, my Polish friends sometimes ask about the cultural differences between the two countries. I always struggle to answer on the spot, so I decided to explore some of the most striking dissimilarities in a series of short blog posts. It’s only fitting to start with guns.

Although you won’t see this brought up by any gun control advocate, Poland has long had some of the strictest firearms regimes in the world – surpassed only by a handful of countries such as Rwanda, Niger, Japan, and North Korea. The roots of this policy are difficult to pinpoint, but it may have had to do with the years of foreign partitions, followed by the Soviet-imposed communist rule; in those trying times, private militias must have been seen as a grave threat to the social order and to the personal safety of the ruling class. Whatever the original reasoning, the effects are plain to see: in today’s Poland, there is almost no tradition of gun ownership or hobby shooting sports; the country averages just around one firearm per 100 residents, compared to almost seven in the UK, fifteen in Australia, sixteen in the Czech Republic, or thirty in Austria, Iceland, Finland, and Germany. It’s likely that most Poles do not even know anyone who legally owns a gun.

In many ways, the United States may seem like the polar opposite: we have enough privately-owned firearms to equip every single man, woman, and child. In much of the country, there is no permitting process for new purchases and no registration requirements for handguns, rifles, or shotguns. The weapons can be bought at trade shows, given to family members, or loaned to friends. Long guns and ammo can be bought in sporting stores or at Walmart. And sure, if you want to have AR-15 just because it looks like fun, you can; indeed, many people get it for that reason alone.

In America, the right to bear arms is an ancient tradition going all the way back to the early days of the republic. Its constitutional standing is not very different from that of freedom of speech; there is ample evidence that the Founding Fathers envisioned the Second Amendment as the ultimate way to forever protect all other personal liberties, to resist feudal subjugation, and as to ensure the sovereignty of the fledgling country. Although several other, collectivist interpretations of the Second Amendment have been put forward by progressive thinkers, their efforts have not been successful; today, roughly 75% of all Americans believe that the Constitution gives them a well-defined, individual right to own a gun, and the Supreme Court has sided with their views.

In the minds of some citizens, the Second Amendment is still the only thing that stands between freedom and tyranny, be it at the hands of foreign powers or their own government run amok; but for many others, gun ownership is simply an empowering family hobby pursued at any of the tens of thousands shooting ranges all across the United States. In a country populated far less densely than Europe, there is also a clear utilitarian aspect to it all: especially for rural populations, rifles are seen as a necessity for defending one’s property against wild animals or scaring away criminals or drunken thugs. Across much of the US, the right to protect yourself with deadly force – without having to retreat or to submit to an assailant – is seen as a fundamental human right.

Of course, all this comes at a price: even though it is overall a very safe country, the US leads the highly developed world in homicides, the bulk of which are committed with guns. The causes of this phenomenon are complex, deeply intertwined with the American psyche and the unique structure of the society; the fashionable practice of placing the blame squarely on the easy availability of firearms does not hold up to closer scrutiny. Nevertheless, it would be dishonest to claim that broad gun ownership comes at no cost to the American public. Some of the most vivid pictures seared into people’s minds are the infrequent but soul-crushing school shootings. A more everyday occurrence are police encounters that end tragically because of the presumption that any suspects – even children – may be armed to their teeth.

Over the last century, the worries about gun violence – the bulk of which traces back to drug trade and gang activity – has led to increasing federal and state regulation of firearms. It is probable that some of these rules ended up saving lives with little practical harm to civil liberties; examples of this may include restrictions on fully-automatic weapons or the requirement for seamless background checks. But many other legislative efforts attempted to dismantle or substantially reinterpret the Second Amendment in an emotional response to individual tragedies – and without having an honest, national debate about the amendment’s lasting value to the American society. One can mention Chicago, Washington D.C., and San Francisco, all of which attempted to impose blanket bans on handgun ownership. Another good example is New Orleans, where the officials went as far as going door to door and forcibly confiscating firearms in the wake of hurricane Katrina; their intentions may have been pure, but in light of the case law and the prevailing libertarian sentiments that still resonate with many Americans, the wisdom of that gun grab seemed dubious at best.

In recent years, such zealous approaches inevitably meet their end in the courtroom – as noted earlier, judges, much to gun control advocates’ chagrin, see the awkwardly-worded Second Amendment as a proclamation of a very clear, individual right. If anything, the zeal of anti-gun activists has made it harder to have a reasonable discussion about gun rights, and enshrined the confusing and half-baked status quo. The constant onslaught of hastily-written legislation, coupled with erratic enforcement of the existing statutes, creates a toxic atmosphere where many firearms enthusiasts and interest groups feel that their freedom is under assault – and that the only way to avoid gradual erosion of constitutional rights is to fight each and every new proposal tooth and nail. One of the sticking points for the National Rifle Association is that federal gun registries would make it easy for the “baddies” to confiscate all firearms in the country. To many, this seemingly preposterous idea rings a lot less hollow after the New Orleans incident.

In Europe, and in Poland in particular, gun laws in the US are often seen as a deranged product of a powerful gun lobby that works against the will and to the detriment of normal citizens; some progressive politicians, scholars, and pundits in the US adopt the same view, demanding new gun restrictions without first winning the hearts and minds of fellow Americans. But when buying into this narrative, it is easy to overlook that the lobby in question is funded chiefly not by large corporations or the super-rich, but by ordinary citizens – and that it enjoys steady popular support, with approval ratings far higher than most politicians can claim.

In my younger years, I remember being entranced by “Bowling for Columbine”, viscerally hating the National Rifle Association, and shaking my head in disbelief at the stereotype of gun-totting, trigger-happy Americans. Today, I see the reality as far more nuanced – and if forced to take sides in this fascinating and emotional clash between collectivism and civil rights, I’m far less certain that collectivism would get my vote.

The article continues with a closer look at the costs and politics of gun ownership in the US; for the second part, click here.

Post-Bilski Steps for Anti-Software-Patent Advocates

Post Syndicated from Bradley M. Kuhn original http://ebb.org/bkuhn/blog/2010/06/30/bilski.html

Lots of people are opining about
the USA
Supreme Court’s ruling in the Bilski case
. Yesterday, I participated
in
a oggcast
with the folks at SFLC
. In that oggcast, Dan Ravicher explained most
of the legal details of Bilski; I could never cover them as well as he
did, and I wouldn’t even try.

Anyway, as a non-lawyer worried about the policy questions, I’m pretty
much only concerned about those forward-looking policy questions.
However, to briefly look back at how our community responded to this
Bilski situation over the last 18 months: it seems similar to what
happened
while the Eldred
case
was working its way to the Supreme Court. In the months
preceding both Eldred and Bilski, there seemed to be a mass hypnosis that
the Supreme Court would actually change copyright law (Eldred) or patent
law (Bilski) to make it better for freedom of computer users.

In both cases, that didn’t happen. There was admittedly less of that
giddy optimism before Bilski as there was before Eldred, but the ultimate
outcome for computer users is roughly no different in both cases: as we
were with Eldred, we’re left back with the same policy situation we had
before Bilski ever started making its way through the various courts. As
near as I can tell from what I’ve learned, the entire “Bilski
thing” appears to be a no-op. In short, as before, the Patent
Office sometimes can and will deny applications that it determines are
only abstract ideas, and the Supreme Court has now confirmed that the
Patent Office can reject such an application if the Patent Office knows
an abstract idea when it sees it. Nothing has changed regarding most
patents that are granted every day, including those that read on software.
Those of us that oppose software patents continue to believe that software
algorithms are indeed merely abstract ideas and pure mathematics and
shouldn’t be patentable subject matter. The governmental powers still
seems to disagree with us, or, at least, just won’t comment on that
question.

Looking forward, my largest concern, from a policy
perspective, is that the “patent reform” crowd,
who claim to be the allies of the anti-software-patent folks,
will use this decision to declare that the system works.
Bilski’s patent was ultimately denied, but on grounds that leave us no
closer to abolishing software patents. Patent reformists will
say: Well, invalid patents get denied, leaving space for the valid
ones. Those valid ones, they will say, do and should include
lots of patents that read on software. But only the really good
ideas should be patented, they will insist.

We must not yield to the patent reformists, particularly at a time like
this. (BTW, be sure to read
RMS’ classic and still relevant essay,
Patent
Reform Is Not Enough
, if you haven’t already.)

Since Bilski has given us no new tools for abolishing software patents,
we must redouble efforts with tools we already have to mitigate the
threat patents pose to software freedom. Here are a few suggestions,
which I think are actually all implementable by the average developer,
to will keep up the fight against software patents, or at least,
mitigate their impact:

License your software using the
AGPLv3,
GPLv3,
LGPLv3,
or Apache-2.0.
Among the copyleft
licenses, AGPLv3
and GPLv3 offer the
best patent
protections; LGPLv3
offers the best among the weak copyleft
licenses; Apache
License 2.0
offers the best patent protections among the permissive
licenses. These are the licenses we should gravitate toward,
particularly since multiple companies with software patents are
regularly attacking Free Software. At least when such companies
contribute code to projects under these licenses, we know those
particular codebases will be safe from that particular company’s
patents.

Demand real patent licenses from companies, not mere
promises. Patent promises are not
enough0. The Free Software
community deserves to know it has real patent licenses from companies
that hold patents. At the very least, we should demand unilateral
patent licenses for all their patents perpetually for all
possible copylefted code (i.e., companies should grant, ahead of
time, the exact same license that the community would get if the
company had contributed to a yet-to-exist GPLv3’d
codebase)1. Note
further that some companies, that claim to be part of the
FLOSS community, haven’t even given the
(inadequate-but-better-than-nothing) patent promises.
For example,
BlackDuck holds a
patent related to FLOSS
, but
despite saying
they would consider at least a patent promise
, have failed to do
even that minimal effort.

Support organizations/efforts that work to oppose and end
software patents. In particular, be sure that the efforts
you support are not merely “patent reform” efforts hidden
behind anti-software patent rhetoric. Here are a few initiatives that
I’ve recently seen doing work regarding complete abolition of software
patents. I suggest you support them (with your time or dollars):

End Software
Patents
(a project of
FSF),
FFII
(European-specific)
, and
APRIL
(France-specific)
.

Write your legislators. This never hurts. In the
USA, it’s unlikely we can convince Congress to change patent law,
because there are just too many lobbying dollars from those big
patent-holding companies (e.g., the same ones that wrote
those nasty
amicus
briefs
in Bilski). But, writing your Senators and Congresspeople once a year
to remind them of your opposition patents that read on software simply
can’t hurt, and may theoretically help a tiny bit. Now would be a good
time to do it, since you can mention how the Bilski decision convinced
you there’s a need for legislative abolition of software patents.
Meanwhile, remember, it’s even better if you show up at political
debates during election season and ask these candidates to oppose
software patents!

Explain to your colleagues why software patents should be
abolished, particularly if you work in computing. Software
patent abolition is actually a broad spectrum issue across the
computing industry. Only big and powerful companies benefit from
software patents. The little guy — even the little guy
proprietary developer — is hurt by software patents.
Even if you can’t convince your colleagues who write proprietary
software that they should switch to writing Free Software,
you can instead convince them that software patents
are bad for them personally and for their chances to succeed in
software. Share the film,
Patent
Absurdity
, with them and then discuss the issue with them
after they’ve viewed it. Blog, tweet, dent, and the like about the
issue regularly.

(added 2010-07-01 on tmarble‘s
suggestion) Avoid products from pro-software-patent
companies. This is tough to do, and it’s why I didn’t call
for an all-out boycott. Most companies that make computers are
pro-software-patent, so it’s actually tough to buy a computer (or even
components for one) without buying from a pro-software-patent company.
However, avoiding the companies who are most aggressive with patent
aggression is easy: starting with avoiding Apple products is a good
first step (there are plenty of other reasons to avoid Apple anyway).
Microsoft would be next on the list, since they specifically use
software patents to attack FLOSS projects. Those are likely the big
two to avoid, but always remember that all large companies with
proprietary software products actively enforce patents, even if they
don’t file lawsuits. In other words, go with the little guy if you
can; it’s more likely to be a patent-free zone.

If you have a good idea, publish it and make sure the great
idea is well described in code comments and documentation, and that
everything is well archived by date. I put this one last on
my list, because it’s more of a help for the software patent
reformists than it is for the software patent abolitionists.
Nevertheless, sometimes, patents will get in the way of Free Software,
and it will be good if there is strong prior art showing that the idea
was already thought of, implemented, and put out into the world before
the patent was filed. But, fact is,
the “valid”
software patents with no prior art are a bigger threat to software
freedom
. The stronger the patent, the worst the threat, because
it’s more likely to be innovative, new technology that we want to
implement in Free Software.

I sat and thought of what else I could add to this list that
individuals can do to help abolish software patents. I was sad that
these were the only five six things that
I could collect, but that’s all the more reason to do
these five six
things in earnest. The battle for software freedom for all users is not
one we’ll win in our lifetimes. It’s also possible abolition of
software patents will take a generation as well. Those of us that seek
this outcome must be prepared for patience and lifelong, diligent work
so that the right outcome happens, eventually.

0 Update: I
was asked
for a longer write up on software patent licenses as
compared to mere “promises”.
Unfortunately, I
don’t have one, so the best I was able to offer

was the interview I did
on Linux Outlaws, Episode 102, about Microsoft’s patent
promise
. I’ve also added a TODO to write something up more completely
on this particular issue.

1 I am not
leaving my permissively-license-preferring friends out of this issue
without careful consideration. Specifically, I just don’t think it’s
practical or even fair to ask companies to license their patents for
all permissively-licensed code, since that would be the same as
licensing to everyone, including their proprietary software
competitors. An ahead-of-time perpetual license to practice the
teachings of all the company’s patents under AGPLv3 basically makes
sure that code that’s eternally Free Software will also eternally be
patent-licensed from that company, even if the company never
contributes to the AGPLv3’d codebase. Anyone trying to make
proprietary code that infringed the patent wouldn’t have benefit of
the license; only Free Software users, distributors and modifiers
would have the benefit. If a company supports copyleft generally,
then there is no legitimate reason for the company to refuse such a
broad license for copyleft distributions and deployments.