August 27, 2005
I'M A DRUG-FIEND, NOT A BOMBER:
Roberts v. the Future (JEFFREY ROSEN, 8/28/05, NY Times Magazine)
In the wake of the recent London bombings, the New York subway system implemented random bag searches, and the London Underground announced plans to introduce high-tech body scanners that peer through clothing. In the coming years, if technology advances as expected and the threat of terror fails to subside, Western democracies will develop ever more sophisticated and intrusive forms of surveillance, many of which will be challenged in court as a violation of rights to privacy and equality. Not long ago, I visited Marc Rotenberg, the head of the Electronic Privacy Information Center, a civil-liberties group, at his office in Washington and asked him what form he thought the new legal battles over surveillance technology might take.Sketching out a hypothetical situation, Rotenberg imagined, in the near future, a young man walking around the Washington Monument for 30 minutes while waiting for a friend. Meanwhile, sophisticated biometric camera systems (which can register the details of someone's face), connected to data-mining computer programs (which link the face to a database of personal information), monitor the young man. The cameras might also detect, say, a copy of the Koran he is carrying under his arm. Taken together, this information is used to generate a ''threat index'' based on how suspicious the high-tech profiling makes him out to be. ''According to the computer algorithm, pacing around a national monument might be a suspicious activity characteristic of someone intending to commit a terrorist attack,'' Rotenberg said. ''The link between his face and his travel records and magazine subscriptions, maintained by a big commercial database, might generate a citizenship trustworthiness score that suggests further investigation.''
Based on a low trustworthiness score, the young man might be stopped by the police, who might open his backpack and find a bag of marijuana. Would the examination of the backpack amount to an unconstitutional search or seizure?
On the current Supreme Court, Rotenberg noted, a challenge on constitutional grounds to this kind of search might face an uphill battle. In January, in a 6-2 decision written by the court's most liberal justice, John Paul Stevens, the court upheld as constitutional a dog sniff of a driver who had been stopped for speeding. (When the dog barked, the cops opened the trunk and found marijuana.) The dissenting justices, David Souter and Ruth Bader Ginsburg, expressed concern that the majority opinion cleared the way for the police to turn drug-sniffing dogs on large groups of innocent citizens without cause to suspect illegal activity. But even Ginsburg and Souter said there might be nothing wrong with the use of bomb-detection dogs if they were effective in identifying potential terrorists.
According to the court's logic, whether a threat-index system that places citizens in different categories of suspicion violates the Constitution might depend on how accurate the threat indexes turn out to be. But even if the indexes turned out to not be very accurate, Rotenberg suggested, a justice like John Roberts, should he be sitting on the court, might not be inclined to question their use. In two recent cases as an appellate judge, Roberts was very deferential to searches and seizures by the police. In one case, he reluctantly upheld a Washington policy requiring the arrest of a 12-year-old girl who ate a French fry in a Washington Metro station, and in the other, he argued in dissent that the police should have been allowed to search the trunk of a car after stopping the driver for having a broken light. (The officers found a loaded gun in the trunk, a discovery that Roberts's colleagues in the majority contended had to be suppressed because there had been no probable cause to search the trunk in the first place.) ''Roberts seems untroubled by what people would think of as pretextual searches,'' Rotenberg said.
If polls about the U.S.A. Patriot Act are correct (only 22 percent of Americans say it goes too far in restricting people's civil liberties to fight terrorism, while 69 percent are content with it or say it doesn't go far enough), many people may not object to data-mining technology that promises to identify potential terrorists. But if the war against terror escalates further, the government may deploy even more controversial forms of electronic surveillance.
The argument that rather than identify just terrorists it may pick out other types of criminals is a surefire loser. The following though is hilarious:
The guru of digital activism is the Stanford law professor and cyberspace visionary Lawrence Lessig, whom I recently reached by telephone in Spain. ''As life moves increasingly onto the Net and the capacity to control every aspect of our cultural capital increases almost to perfection..."
Has there ever been a guru who didn't think he was leading us to perfection?
Posted by Orrin Judd at August 27, 2005 11:47 PM
And that poll about the Patriot Act is after years of non-stop misinformation and outright lying about its content and its consequences. That's what should scare the Civil Libertines. We've gotten so used to their "Wolf!" cries and their outright lying that we don't listen them or care what they say (or think) any more.
Posted by: Raoul Ortega at August 28, 2005 12:46 AMI never got to the part in the article where Larry Lessig said what he did, so I have no comment on what you found hilarious...
However, I wish people would listen to Lessig on the subject of copyright. His concept is that copyright should cost something to maintain so that 98% of all works would return to the public domain within a reasonable period of time. As it stands, nothing will ever become public domain again because Congress keeps extending its length (against the Constitution) in order to keep Disney happy.
Expressed ideas are not property.
The real cost of copyright is that nothing can ever be derived and we will never return to the great music and literature of bygone eras because of it.
Posted by: Randall Voth at August 28, 2005 3:17 AMBy "pretextual search" is meant that the policeman has been able to articulate probable cause to swearch or reasonable grounds to make a Terry stop. In my experience, this is a function of the training and intelligence of the individual officer.
One of the things I did as a Marine Corps Judge Advocate was to train military police of the law of searches and apprehension. These lectures were extremely popular, not just as an excuse to set in an air conditioned building for a few hours, but as a source of knowledge as to what to say so your searches don't get tossed.
In my experience, military and civilian, both side of the aisle, intentional Fourth Amendment police misconduct is extremely rare. Most suppressions could have been prevented by advance training on how to articulate one's probable cause/reasonable grounds.
BTW, supressions are a principal way corrupt police and corrupt judges fix cases.
Posted by: Lou Gots at August 28, 2005 7:23 AM
Randall:
The idea that in an idea reliant economy we're going to afford ideas less protection and less capacity to pay back their developers seems odd.
Posted by: oj at August 28, 2005 8:28 AMoj -- Exactly the opposite.
All economy is local. All property is physical.
Have you ever had an original idea? Have you ever built upon someone else's idea? By extending copyright ad nauseam, the idea reliant economy will be destroyed. (Furthermore, since when have ideas become a 20th century phenomena?) Today's light-speed turnover of technology makes things obsolete in 6 months. Any protection of an idea for longer stifles the economy.
Benjamin Franklin had it right: an idea is like a flame. You can pass it on and not lose anything of your own.
Copyright ad nauseam doesn't pay back developers, it pays back corporations who own "properties" of long dead developers.
All Lessig is suggesting is that people should pay for the privilege of having the government protect their copyright. Once the idea becomes unprofitable, no one will pay to protect it and it will become public domain. It isn't perfect, but it is a start.
Just think what it would be like if you had to ask permission to use the alphabet.
Posted by: Randall Voth at August 28, 2005 8:57 AMI have a book coming out this Fall. If you can just copy it and sell it how would I be repaid for my time? Ideas are property.
That's why even the Constitution protects patents and copyrights.
Posted by: oj at August 28, 2005 9:14 AMWhat a Mickey Mouse problem.
Posted by: David Cohen at August 28, 2005 9:46 AMAs is clear from the article, Lessig doesn't see perfect control of cultural capital/resources as a good thing. And I think he overestimates the extend to which media companies & regulations will be capable of leashing the internet.
Posted by: Daran at August 28, 2005 11:46 AMIt's not the copyright that's the problem, but the length. Except for people like the so-called Open Source fanatics, most people agree that there is a need to allow people time to exploit their ideas and hard work in creating "intellectual property". The problem is that in the past, such ideas, especially the popular ones, would eventually become part of our common heritage and be available for everyone to use as a base for creating new ideas. The current situation creates an environment where everyone is jealously guarding their three notes of fame for all eternity, lest someone else use that "sample" for their own benefit.
Should we still be paying Beethoven and Bach and Mozart's heirs for their works and all the cultural influences derived from them? Unless you say "yes", then you''re admiting that copyrights should not be eternal. The argument is over for how long and what needs to be done to make and keep one.
Automatic copyrights should be much shorter than they've become, but at the same time, it should be possible, with some effort, to extend them for the good/profitable works (like Mickey). The bad or poorly promoted would become public domain, allowing others to either do it right, or do a better job of getting those ideas and works to the public. They should be like mining claims, where your claim lapses if you don't do the required "improvements" or go to the effort of patenting it.
(For another example of copyright abuse, see the MLKing family. If someone has a national holiday in their honor, a prerequisite should be that their words and writings belong to the nation. Can you imagine (and would you approve) the Lincoln family charging a fee everytime someone quotes from the Lincoln-Douglas debates?)
Spider Robinson attacked the problem of permanent copyrights in the short story Melancholy Elephants, one of the best SF stories ever written.
Posted by: Gideon at August 28, 2005 4:37 PMoj -- Raoul expressed the problem with automatic copyright very well, except he wrongly demonized Open Source and its supporters. Ideas don't need time, they need sharing. The term 'intellectual property' is an artificial construct that stifles creativity, not encourages it. (By calling it 'property', it makes those of us who believe in real property look bad if we don't support it. Like calling abortion, 'choice'.)
You know as well as I do that only 2% of books are successful -- and even most of those only make decent money for the publishers. How do the other 98% get paid for their time? If you want to be paid for your time, get an hourly job, like say editing authors who think they'll ever make a dime. (Even successful authors write columns, make speaking appearances, are professors...)
The current system is a lottery. It produces bad books, bad music and treats artists like serfs.
I'm sorry that I can't come up with an alternative that would satisfy everyone, but if ideas were free, then the packaging of them would become more creative and, believe me, people would still make money from the results.
What you probably would lose is the lottery upside that makes illegitimate idiots millions while everyone else starves. And it would prevent everything ever produced from being owned by Michael Eisner.
Posted by: Randall Voth at August 28, 2005 6:02 PMRandall:
The point being that ideas are produced on hourly wages. We have the most idea rich society on Earth because they're worth money.
Posted by: oj at August 28, 2005 6:37 PMThe packaging of ideas is worth money because it is often easier to buy a package than it is to produce it yourself. That is the definition of profit. But the idea itself is not worth anything except used in conjunction with an infinite number of ideas that are not your own (and, because they were thought up before the current copyright regime, are free to use).
Mat 7:12 (the golden rule, do unto others) is a verse that many have trouble with...
...however, Mat 10:2 (freely ye have received, freely give) is the most troublesome because we are too proud and selfish and jealous. It makes everyone poorer.
Benjamin Franklin made the idea of his stove public knowledge, and it could be argued that he saved the east coast forests by doing so. But people still made a living manufacturing the stoves and Benjamin Franklin didn't starve.
No one has to own an idea.
Posted by: Randall Voth at August 28, 2005 6:55 PMYes, the ideas enter public domain after a reasonable amount of time.
Posted by: oj at August 28, 2005 6:59 PM