New York Allows Same-Sex Marriage, Becoming Largest State to Pass Law

Yesterday, the New York State Senate approved the bill, 33 to 29.

ALBANY — Lawmakers voted late Friday to legalize same-sex marriage, making New York the largest state where gay and lesbian couples will be able to wed and giving the national gay-rights movement new momentum from the state where it was born.

It’s about time!

Illinois Governor Signs Capital Punishment Ban

Yesterday, Illinois joined the civilized world, including 15 other states, by abolishing the death penalty. Their reason? One of sense:

Since our experience has shown that there is no way to design a perfect death penalty system, free from the numerous flaws that can lead to wrongful convictions or discriminatory treatment, I have concluded that the proper course of action is to abolish it, Mr. Quinn [Illinois Governor Pat Quinn] said in a statement.

In 2000, at the same time that Texas Governor George W. Bush was crowing arrogantly that every one of the people executed in his state during his reign — well over 100 — was guilty and deserved to die, the governor of Illinois at that time, George Ryan, suspended the death penalty because DNA evidence proved that a disturbing number of the death-row inmates there were, in fact, innocent.

Before then, George Pataki won the election for governor in New York with the promise of reinstating the death penalty here. And our state’s top court subsequently declared the law unconstitutional. No one has been executed in New York since 1963. The Massachusetts law has also been declared unconstitutional by its state courts.

The thirteen other states that do not have death penalty statutes at all are Alaska, Hawaii, Iowa, Maine, Michigan, Minnesota, New Jersey, New Mexico, North Dakota, Rhode Island, Vermont, West Virginia, and Wisconsin.

In contrast, Texas has killed 466 inmates since 1976. Virginia is a very distant second, at 108. In fact, Texas has executed more people than the next six states, combined (Virginia, Oklahoma (96), Florida (69), Missouri (68), Alabama (50), and Georgia (49)).

Illinois executed 12 prisoners between 1976 and Governor Ryan’s moratorium in 2000. Hooray for them for making it clear that they’ll kill no more.

“Hey, that’s my camera, Charlie!” “This is my farm, Clyde!”

Here: What do you do when people (such as animal-rights activists) take pictures of your farm in order to document abusive practices?

The answer, of course, should be obvious: you make it a felony to photograph farms.

Yes, the Florida state senate is considering a bill, SB 1246, that will do just that. From the Times:

Photographers — perhaps including some ghosts from Farm Security Administration days — are astir at news of a bill introduced by State Senator Jim Norman of Florida that would make it a felony to take a picture of a farm without the owner’s permission.

The bill is short, so let’s include the text, as introduced in the Florida Senate yesterday, here in its entirety. Paragraph (2) is the operative one.

A bill to be entitled

An act relating to farms; prohibiting a person from entering onto a farm or photographing or video recording a farm without the owner’s written consent; providing a definition; providing penalties; providing an effective date.

Be It Enacted by the Legislature of the State of Florida:

Section 1. (1) A person who enters onto a farm or other property where legitimate agriculture operations are being conducted without the written consent of the owner, or an authorized representative of the owner, commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, Florida Statutes.

(2) A person who photographs, video records, or otherwise produces images or pictorial records, digital or otherwise, at or of a farm or other property where legitimate agriculture operations are being conducted without the written consent of the owner, or an authorized representative of the owner, commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, Florida Statutes.

(3) As used in this section, the term farm includes any tract of land cultivated for the purpose of agricultural production, the raising and breeding of domestic animals, or the storage of a commodity.

Section 2. This act shall take effect July 1, 2011.

Get all your Florida farm picture-taking done by June, now.

[I’ll note in passing that this also seems to make it illegal for someone to snap pics of your back-yard marijuana crop. Just sayin’.]

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Update, 14:20 — Adding something I said in a comment elsewhere:

When I was in college (at University of Florida), I would see a great sunflower farm as we drove up I-75. When the sunflowers were blooming in row after row, it was really beautiful and striking.

The idea that if one’s passenger should snap a shot of that on the way by, without first stopping at the farmhouse for a written photo release, then one might be liable to prosecution for a felony... is pretty insane.

And the idea that they’re even considering this is equally insane. This is not the country I grew up in.

More police behaving badly

It’s been a while since I’ve written about rape (some of the most significant ones are here,here, and here). But via BoingBoing I’ve just read about a case in San Antonio that’s unusually disturbing: a police officer on duty handcuffed a suspect — a transgender prostitute — then drove her off to a quiet spot and forced [her] to commit multiple sex acts.

It’s disturbing that it happened, that a law officer would do such a thing. But what’s more disturbing is that the prosecutor charged him not with felony rape, despite the DNA and GPS evidence supporting the victim’s story, but with misdemeanor official oppression. Craig Nash lost his job and was sentenced to one year in jail.

One year, for violently abusing the trust we gave him as an officer of the law.

From what we’re given in the news article, it appears that the victim’s story is legitimate. In addition, a second victim, from a couple of years earlier, came forward. Nevertheless, the prosecutor gave the (former) cop a plea bargain, agreeing to charge him only with the misdemeanor and not to pursue the second accusation.

WTF?

Apart from that, even if the sex had been consensual, an on-duty officer having sex with a suspect is sufficiently wrong at so many levels as to warrant a penalty of much more than a year in jail. Think of the opportunities for abuse that crop up here: threatening women with arrest in order to get sex,^[1] releasing arrested suspects in exchange for sex, and so on.

It makes no difference how good a police officer he was in other ways or at other times. It certainly makes no difference how good a family man he is. None of that mitigates this crime.

We place a great deal of trust in police officers, and we give them a great deal of power. They must be held accountable for the misuse and abuse of that trust and power, and the punishments must be serious, not just slaps on the wrist. Dismissal, of course, but then real prison time, not just a token jail sentence. We have to show no tolerance for abusive or illegal — not to mention vile — behaviour.

I’ll note the related case from Custer County, Oklahoma, wherein former sheriff Mike Burgess had established a systematic system of sexual abuse. He got 79 years in prison.

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^[1] Personally, I consider this to be fully fledged rape, using a threat of arrest instead of, say, a knife or a threat of a severe beating. I’m not sure where the law would stand on it.

More on search warrants and electronic data

Varying a bit from this item, last week the California state Supreme Court decided that police can seize and search a mobile device that an suspect has with him when he’s arrested.

This differs from the first decision in a couple of ways. For one thing, the former was by the U.S. Sixth Circuit Court of Appeals, a court that covers Michigan, Ohio, Kentucky, and Tennessee; California is covered by the Ninth Circuit, and the Sixth Circuit’s decision is not binding there. For another, this decision is by a state court, not a federal one, so it applies in the state of California only.

But more significantly, this is specifically about things that someone who’s arrested has on his person at the time of arrest. The decision is based on a more general rule that police are allowed to examine whatever a suspect has when he’s arrested:

Under U.S. Supreme Court precedents, this loss of privacy allows police not only to seize anything of importance they find on the arrestee’s body ... but also to open and examine what they find, the state court said in a 5-2 ruling.

The majority, led by Justice Ming Chin, relied on decisions in the 1970s by the nation’s high court upholding searches of cigarette packages and clothing that officers seized during an arrest and examined later without seeking a warrant from a judge.

As in many other cases, this highlights a need to be clear that data storage devices and devices that can access online information are not like cigarette packages and clothing. I don’t think any of us doubt that the police can and should look for cocaine hidden in a cigarette pack, or a switchblade in the back trouser pocket. But if I’m carrying my laptop when I’m arrested, do they have reasonable access to all my stored email and other personal and financial information?

The minority of two justices say no, as do I:

The dissenting justices said those rulings shouldn’t be extended to modern cell phones that can store huge amounts of data.

Monday’s decision allows police to rummage at leisure through the wealth of personal and business information that can be carried on a mobile phone or handheld computer merely because the device was taken from an arrestee’s person, said Justice Kathryn Mickle Werdegar, joined in dissent by Justice Carlos Moreno.

They argued that police should obtain a warrant - by convincing a judge that they will probably find incriminating evidence - before searching a cell phone.

The courts need to sort out these differences, and set up a legal understanding of where personal effects end and private data begins. Unfortunately, the current U.S. Supreme Court does not have the composition to come up with a reasonable answer to that question.

Taking anti-spam work personally

Via Brent, comes the AP story of a man who quit his job, went to law school, and now sues spammers:

Eight years ago, Balsam was working as a marketer when he received one too many e-mail pitches to enlarge his breasts.

Enraged, he launched a Web site called Danhatesspam.com, quit a career in marketing to go to law school and is making a decent living suing companies who flood his e-mail inboxes with offers of cheap drugs, free sex and unbelievable vacations.

I feel like I’m doing a little bit of good cleaning up the Internet, Balsam said.

As Brent says, Go! Go! Go!

As for me, I say it’s too bad I didn’t have the confidence to do something like that when I left IBM.

Search warrant needed for email

It’s a busy day, so I’ll just point to an Electronic Frontier Foundation report on a court decision that we should all be happy with:

In a landmark decision issued today [Tuesday; the link is to a PDF] in the criminal appeal of U.S. v. Warshak, the Sixth Circuit Court of Appeals has ruled that the government must have a search warrant before it can secretly seize and search emails stored by email service providers. Closely tracking arguments made by EFF in its amicus brief, the court found that email users have the same reasonable expectation of privacy in their stored email as they do in their phone calls and postal mail.

On the right to DNA testing: Skinner v. Switzer

Our criminal justice system is sometimes arrogant.

We believe — at least, as the written code tells it — that our juries are infallible, or that their fallibility is an acceptable ill. And we must do so in order to keep the system working, to keep the problems contained. Most of the time, I agree with the acceptable ill attitude. But we often cling to that belief too doggedly, refusing to reconsider convictions when we should.

At no time is our responsibility to reconsider greater than when we decide to execute someone. Before we impose an irreversible sentence, we must take every opportunity we can to correct any possible mistake. We shouldn’t stand on process when someone’s life is at stake.

It would be wrong to refuse to hear a death-row appeal because the paperwork was filed a week late.

It would be wrong to refuse to consider new evidence that had surfaced after the jury made its decision.

And it would be wrong not to allow examination of evidence that existed but that had not been examined.

Yet that last is the concern of a case that the U.S. Supreme Court will hear tomorrow, the case of Hank Skinner (click through, then search for skinner):

The Texas state and federal courts — hearing Skinner’s habeas corpus pleas — refused to allow post-conviction testing of biological evidence, including blood, hair, fingernail clippings and vaginal swabs. The courts held that, under Texas law, a convict must prove, by a preponderance of the evidence, that he or she would not have been prosecuted or convicted had DNA testing been performed. To get DNA testing, a Texas inmate must also demonstrate that his failure to seek such testing at trial was not a strategic decision.

The law shifts the burden onto the defendant, who must show not just that doing the DNA testing would be reasonable, not just that the DNA testing might exonerate him, but that by a preponderance of the evidence, the state would have let him go without even going to trial if they’d done the tests then. And he has to do that just to get the testing done. Then to top that, he also has to explain away the procedural aspects of why this hadn’t been requested earlier.

Now, I’m as curious as the next guy, and I certainly want to ask why his defense team didn’t deal with this before. But I can’t imagine my decision on the testing hinging on that aspect. And I don’t want him to prove anything in order to get the biological evidence tested. The fact is that it’s available and it wasn’t tested, for whatever reasons, and, here: they’re going to kill Mr Skinner; they owe him an assurance that they did everything they could to be sure they’re right about that.

As if that weren’t enough, we have the heads of the justice departments of twenty-two states giving another crazy reason we should deny the request: they say that the states should get to decide this, and the federal government should keep out of it. If they’re short on money and personnel for testing, condemned prisoners will just have to accept their fates.

At least 22 states told the justices that granting Skinner DNA testing through a civil rights suit would undermine their individual statutes, which spell out when an inmate is entitled to it.

To allow this type of procedural legerdemain would both diminish the sovereign interests of the states and at the same time impose a significant burden on the states’ limited law enforcement resources, attorneys general from the 22 states wrote.

That sort of callousness seems enough of a reason, in itself, to demand that they take a step back and think. If it were your child standing accused, how would you want it to be handled? That couldn’t happen? Don’t count on that; sure, it could.

This should never have gotten to the Supreme Court, but now that it has, the court should require the testing. I’m not very confident that it will, though, with Justices Scalia, Thomas, Alito, and Roberts sure to vote against it. The outcome will likely rest on how Justice Kennedy votes, as I suspect this will be a five-to-four decision.

Haven’t there been enough people set free because DNA evidence showed that their convictions had been wrong? Can’t we see that this testing only makes sense from every just perspective? The only reason to refuse such a request is to stand with an arrogance that says, We did everything according to the law, and it’s too bad for you. If you think Mr Skinner is just a low-life who just isn’t worth keeping around, line up on that side.

But if you want to be more certain that the right man is being executed, do the tests.

Search engines and their responsibility

A French court has just decided a case that will likely have a great deal of effect on online search engines if the decision is upheld after appeals. A French man had been accused of crimes relating to the corruption of a minor, ultimately resulting in a suspended sentence. He found that Google search results snagged the news items about his case, putting them at the top of search results on his name:

Given extensive press coverage of the alleged crime at the time, querying the man’s name on the popular search engine returns web pages from news publications that suggested he was a rapist, among other non-favorable descriptions.

The man argues that the statements in the online articles still available today adversely characterize him, which puts him in a disadvantageous social position when meeting new people and applying for jobs, among other situations and opportunities.

The man previously contacted Google directly to remove the defamatory articles from its search index, but the company did not do so arguing its proprietary algorithms simply return web pages in its index related to the keywords searched, that is, there is no direct human manipulation of top search results.

The result from the court was this:

The French court sided with the plaintiff, agreeing that those representations were defamatory, and ruled Google could have mitigated costs to the plaintiff by removing the pages.

The ruling ordered Google to pay €100,000, and to reimburse €5,000 in litigation costs incurred by the plaintiff. The ruling also ordered the company to disassociate the man’s name from the defamatory characterizations in Google Suggest, which suggests popular phrases while a person enters search terms in the Google search-box prior to completing a search. Additionally, for every single day the defamatory information remains in the company’s search results, Google would be fined an additional €5,000.

This decision will be disastrous for search engines and other Internet services if it stands. Moreover, it’s just horribly wrong on the surface. It makes no sense to hold indexing services responsible for the information they index, unless it can clearly be shown that they preferentially indexed certain material with a goal of creating a biased view.

Research facilities have, long before the widespread availability of Internet search tools, helped people find news items and other public information that we might rather they didn’t point to, including false information and stories that have since been debunked. We’ve always considered it the responsibility of the researcher to winnow the data.

The difference now, of course, is that the researchers are friends, neighbours, potential romantic partners, and prospective employers... and the information is much more readily available than it ever was. It’s tempting to try to make the search engines let go of obsolete information and only find the current stuff.

The problems with that idea, though, are several. It’s essentially impossible to sort out in any automated way what’s appropriate and what’s not. Even if they prefer legitimate news outlets to other sources of information, and prefer newer articles to older ones, the amount of cross-linking, re-summarizing, and background information will still show searchers plenty of nasty stuff. And who decides what the legitimate news outlets are? The search engines shouldn’t be making those filtering decisions for us.

Any mechanism that isn’t entirely automated doesn’t scale. With the untold millions upon millions of web pages that Google and other search engines have to index every day, there would be no way to respond to individual requests — or demands backed by court mandates — to unlink or otherwise remove specific information.

If this should stand, I can see that Google might have to cease operations in France. If it should spread, it might easily deprive all of us of easy searching on the Internet. That would be a far greater disaster than having a guy in Paris have to explain away unflattering news stories about a false or exaggerated accusation.

Clearing one’s name has always been a difficult challenge, and it’s only been made harder — perhaps, ultimately, impossible — on the Internet. I have a great deal of sympathy for anyone who finds himself relentlessly pursued by his past, especially when that past contains errors that weren’t his.

But this can’t be an answer to that. It just comes with too much collateral damage.

Implicit license

A speaker the other day said something curious, and he repeated it. Several times throughout his talk, he said that most of the information he was giving us is available free of charge on our web site. It’s curious, because his need to say it strays from the model we’ve developed of the worldwide web. That he said it — and not once, but several times — made him seem old fashioned, almost as thought he’d told us to send a self-addressed stamped envelope to get a copy of his presentation.

The part that’s out of place is free of charge, because we assume that now. Of course it’s free of charge: it’s on your web site. The web is a place full of free information, and we take that as the default situation.

Not everything there is free, to be sure. Lots of journals put the papers they publish behind paywalls, and some magazines and newspapers demand subscriptions for ready access to their material. But we mention that when it shows up, because paying is now the exception. We assume information on the web is free unless we’re told otherwise.

On the other hand, we do expect that the information remains the property of those we got it from, unless they say otherwise, at least some of us do. We wouldn’t use someone else’s words without attribution, someone else’s research, someone else’s design, without permission. We might even expect to pay for the use, depending upon what it is we’re using, and for what purpose. And we have lots of discussions about fair use in the process.

But what, exactly, is our fair use of material that’s provided free?

It’s a difficult question, and one with no clear answer. The U.S. fair use doctrine isn’t well defined, and courts take it to mean different things in different situations and at different times. Even cases that are obvious might not be so, depending upon who’s making the judgment. Associated Press tried, to derision and laughter from many professional and amateur bloggers, to limit fair use of their material to fewer than five words. They later said that wasn’t what they’d meant, maybe.

Righthaven, on the other hand, decided not to make any definitions. They just made lawsuits:

In a strategic campaign that is attracting growing interest nationwide in legal and media circles, Righthaven — without warning — has sued at least 86 website owners in federal court in Las Vegas since March for copyright infringement.

[...]

But from the get-go, Righthaven hits copyright violators with lawsuits seeking $75,000 in damages and forfeiture of their website domain names.

Righthaven’s legal initiative has critics calling it a frivolous-lawsuit-and-shakedown campaign aimed not at gaining justice for Righthaven, but at putting money in its pockets — charges denied by Righthaven and its entrepreneurial CEO, Las Vegas attorney Steven Gibson.

[...]

Righthaven’s procedure has been to troll to find an infringement of an R-J copyright to a specific story. It then buys the copyright for that story from the R-J’s owner, Stephens Media LLC, and afterward sues the infringer.

Buying the copyright is an important step because it allows Righthaven to seek statutory damages. (Some of the defendants are arguing that Righthaven lacks standing to sue them because Righthaven didn’t own the copyrights at the time of the initial infringement.)

These are clearly predatory tactics: a good-faith approach, if one really thinks a non-commercial user such as a blogger has overstepped the fair-use line, would be to ask them to take down the offending material. Starting with a large lawsuit is clearly just a way to monetize things.

Now the Electronic Frontier Foundation is calling them on it, having filed a countersuit that claims copyright fraud:

The owner of the Las Vegas Review-Journal has for the first time been hit with a counterclaim over its online copyright infringement lawsuit campaign, with attorneys for the Electronic Frontier Foundation accusing the newspaper of entering a sham relationship with the Review-Journal’s copyright enforcement partner Righthaven LLC — and accusing Righthaven of copyright fraud.

[...]

The Electronic Frontier Foundation (EFF) says the lawsuit campaign threatens freedom of speech on the Internet as Righthaven generally sues without first asking that infringing material be removed from websites or be replaced with links as is the standard practice in the U.S. newspaper industry.

A couple of weeks ago, Groklaw published an interesting analysis of one of the cases, where a defendant got a default judgment set aside and will be allowed to plead his case. It’s particularly interesting because this particular defendant has a situation where an entire column from the newspaper was copied — something that clearly ought to go beyond fair use. Yet the judge, in setting aside the default judgment, ruled that the planned defense is sufficiently reasonable to be heard.

The reasonability of it rests on a few points:

1. The article in question is informational, rather than creative or artistic.
2. The use was non-commercial.
3. The article was available for free from the newspaper’s web site, so financial loss to the newspaper could not be great (there might be loss of advertising revenue, resulting from fewer visits to the paper’s web site).
4. The defense claims that the newspaper gave an implicit license to use the article, by posting it freely on their web site. The judge quotes John S. Sieman, from his paper Using the Implied License to Inject Common Sense into Digital Copyright:

   As the internet has developed into more of an opt-out system, the argument has been made that only the act of sharing information from websites that actively choose to be removed from participating in the system is generally recognized as unacceptable, despite the Copyright Act being an opt-in system.

It’s that last point that’s the most interesting one, and we should follow this case to see where it goes. The defendant has only won the right to argue his case, and he could still lose in the end.

Internet wiretapping

A story about impending U.S. legislation has hit the news in the last few days: Senator Patrick Leahy, along with ten co-sponsors that include Dianne Feinstein and my own senator, Chuck Schumer), has introduced S. 3804, the Combating Online Infringement and Counterfeits Act (link to PDF).

There’s a log of blog outcry about it, of course, and rightly so. I’m less worried about it than many, but I do think it’s a bad idea. Here’s why:

First, we’re meant to be a democracy, different from the totalitarian states we group together with terms such as Axis of Evil and whatnot. That means that, in general, we fit our surveillance and law enforcement into the technology, rather than limiting the technology and building it specifically to enable surveillance and law enforcement. Those who say that this is only paralleling what’s in the telephone system already are missing that the telephone system grew up from a much lower-tech starting point. Wiretaps used to be literally that: wires clipped into wired systems. And it didn’t used to be easy at all.

There’s a lot about surveillance and intelligence gathering that’s hard, and it stands to reason that those tasked with doing it should want to make it easier. Keeping it hard is actually a useful check on nascent authoritarian tendencies, and the temptation for abuse. We’ve recently had court decisions, for example, declaring it a fourth-amendment violation to use GPS tracking without a warrant. These sorts of checks are important.

There’s no saying that the sort of surveillance that S. 3804 proposes will be warrantless — and the bill does specify that a court has to approve it — but we have to remember the warrantless electronic surveillance of the Bush administration, where they bypassed no only the regular courts but also the FISA court, specifically set up to deal with monitoring terrorist action. Official abuse is a real danger.

Further, this bill doesn’t even address terrorism, nor even racketeering or other such crimes. It’s aimed at copyright infringement. Not to put too fine a point on it, but that’s a ridiculous focus for such a broad and risky remedy. There are better ways to address the problem of illegal distribution of copyrighted material, and this is an attempt to shortcut things with a blunt instrument. At least, though, it’s not as bad as the insane French HADOPI law.

Apart from official abuse, though, there’s the issue of abuse by the Bad Guys themselves, who can fool with such a system in two ways:

1. They can take advantage of the holes themselves. Any system that allows authorized intrusion implicitly allows unauthorized intrusion as well, and we should not be so naïve as to think that won’t happen. People are corruptible, security systems are compromised all the time, and if we set it up so that any Internet communication is tappable, malefactors will make their way in and tap it.
2. They can skirt it entirely. It will only be the normal communication channels that will have their encryption compromised, allowing officials to get the unencrypted version. If what gets put on those wires is itself encrypted beforehand — if the unencrypted version is separately encrypted — we’ve gained nothing. Once requiring specialized, high-tech, expensive machines, encryption is now easy, and any ten-year-old with a copy of PGP can do it. And anyone can create a self-signed TLS certificate to secure communication with their web site. There’s nothing the service providers can do to tap into any of that.

The result will be, as often happens with these sorts of things, that private citizens and companies that are trying to abide by the law will have their privacy and liberty compromised, while the real criminals will be able to hide as easily as they do today. If passed, this law will have some effect in the area it’s intended to... but that effect will be limited, and probably short-term.

Finally, there’s the law itself: it actually seems pretty good in its inclusion of safeguards and court involvement. There are two issues I have with it:

1. Sec. 2324(a)(2)(B) is too vague:

   [For purposes of this section, an Internet site is dedicated to infringing activities if such site is] engaged in the activities described in subparagraph (A), and when taken together, such activities are central to the activity of the Internet site or sites accessed through a specific domain name.

   Subparagraph (A) specifies that the site must be specifically designed for these activities, be marketed for these activities, or have no significant purpose other than these activities. That provides a reasonable limitation on the Internet sites that may be targeted here. But then subparagraph (B) opens it back up in a vague way, by saying that any other site might qualify if when taken together such activities are central to the site. Subparagraph (A) clearly does not include such sites as YouTube and Facebook, but subparagraph (B) arguably could. The threat of bringing such an argument to court could exert a severely chilling effect on web sites devoted to social activities and legitimate media sharing.
2. Sec. 2324(j) provides for a public list of sites that are alleged, without any real evidence or court involvement.

   (1) IN GENERAL- The Attorney General shall maintain a public listing of domain names that, upon information and reasonable belief, the Department of Justice determines are dedicated to infringing activities but for which the Attorney General has not filed an action under this section.

   There are mechanisms to ask to be removed from the list, and for judicial review of the case only after the Justice Department refuses the petition for removal. This amounts to an unregulated blacklist of Internet sites, and strikes me as ill advised, and possibly dangerous. There will clearly be such a list held at the Justice Department; the list should not be public. Any public list must be vetted by a court, as a necessary check on law enforcement.

I plan to write to Senator Schumer with a brief version of this post, and a pointer to the full one.

Abuse of “hate crime” prosecutions

The New York Times, yesterday, told of a disturbing trend — a trend of abuse of hate crime laws by prosecutors. The situation amounts to being an unintended, but probably predictable, consequence of misguided legislation (I’ve given my opinion of the whole hate crime concept here, here, and here).

But in Queens since 2005, at least five people have been convicted of, or pleaded guilty to, committing a very different kind of hate crime — singling out elderly victims for nonviolent crimes like mortgage fraud because they believed older people would be easy to deceive and might have substantial savings or home equity.

And this month, Queens prosecutors charged two women with stealing more than $31,000 from three elderly men they had befriended separately. The women, Gina L. Miller, 39, and Sylvia Johns, 23, of Flushing, were charged with grand larceny as a hate crime.

These are clearly not hate crimes by anyone’s understanding of the term, and the situations don’t even remotely dovetail with what was intended when the laws were passed. But, with the complicity of some judges, prosecutors in Queens have figured out how to use them to their advantage.

The prosecutors’ reasons for twisting the law this way is that the system is, as they see it, too lenient on hucksters. The prosecutors would like stiffer sentences for people who bilk people — particularly old people — out of their savings. The problem, of course, is that the prosecutors don’t get to decide that, and if the laws are, indeed, too lenient, then it’s the legislators who have to fix the problem.

But the prosecutors have figured out a work-around, by getting the thieves prosecuted as hate-criminals.

And they’re not abashed about it. Quite the contrary, they’re proud of their novel approach. And can one blame them? Who doesn’t support stricter punishment of these nasties?

Led by Ms. Kane, who runs a specialized elder fraud unit, the efforts have made the Queens district attorney, Richard A. Brown, a leader in finding new uses for hate crime laws, prosecutors in other jurisdictions say. Scott Burns, executive director of the National District Attorneys’ Association, said he had not heard of another office using hate crimes as Queens does.

Neither had Kathleen B. Hogan, president of the State District Attorneys Association. But she looked into the efforts after hearing about it from a reporter, called it an epiphany and said she would suggest it to the group’s committee on best practices. Some New York prosecutors, who asked not to be named because they did not intend to criticize colleagues, said that while the approach intrigued them, they were waiting to see if convictions were overturned on appeal before considering it.

Ms Kane adds, We don’t have a whole lot of tools. We should utilize what the legislature has given us. Basically a direct admission that this is at least something of a stretch.

I see it as more than a stretch: it’s evidence that these sorts of laws are wrong-headed. Except in cases of fairly minor infractions, where it might actually be useful to take them more seriously when there’s a hate motive behind them, we should be concerned with the crime. Nasty crimes deserve vigorous prosecution and severe penalties on their own merits. Cheating people out of their life’s savings, beating people to death, setting fire to buildings, and so on... these are things that don’t need nor benefit from having hate crime attached to them.

Abuse of these laws, though, threatens the system. And the abuse is more likely to spread than to stop.

Is it art?

For another in the “Is it art?” series, we turn to a bit of performance art in Greenwich Village:

Ms. Hanford is part of the gallery’s latest exhibit by Brian Reed. She stands fully naked under a suspended web made of various objects including shark eggs and teeth, beads and clay pipes. Her nakedness is essential, Mr. Reed explained, “so she can be fully at the center of that connectivity” of energy.

Some may call it art, others something less flattering.

We actually have two questions here: whether it’s art, and whether its being art should excuse it. (Well, and there’s a third question, about whether we should lighten up and not be so uptight about nudity, but it’s not that question that I’m addressing here.)

To the second question, we have this:

“Simply walking around naked in and of itself is not protected conduct under the First Amendment,” Mr. Kuby said. “But lying down in the street naked with other people in order to express the duality of nature versus man, or to illustrate some post-apocalyptic vision, is artistic and does communicate a message.”

Hm.

I’m very skeptical of that statement. Indeed, I can easily wangle an artistic excuse for “simply walking around naked”, in and of itself... or for pretty much anything else I might like to do. Why can’t one person who’s simply walking around naked be expressing the duality of nature versus man, or illustrating some post-apocalyptic vision?

If I say it’s art, does that make it art, at least at the level that it becomes protected by law?

And where do we draw the line between what we’ll protect and what we won’t? If those nude people whom Mr Tunick was allowed to photograph (read the article) had been, say, actively having sex, chasing people down the streets, or smoking marijuana, instead of just milling about amongst themselves, would the Supreme Court still have allowed it? Couldn’t all of those scenarios be justified as expressing some duality or other, in an artistic sense?

So, what do y’all think?:

1. Is it art?
2. Assuming it is (whether or not you personally agree), should it be protected?
3. What are the limits?

One more note on Tasers

In a story that hasn’t seemed to have drawn too much press notice, we finally have a Federal court decision, closing out 2009, that police officers can be sued for inappropriate Taser use:

The judge noted, however, that Mr. Bryan did not threaten the officer, Brian McPherson, and was not trying to flee — all elements of a three-part test that the United States Supreme Court has used to determine when significant force is justified. As for the third factor in the court’s test, the severity of the offense at issue, the Ninth Circuit judges observed that “traffic violations generally will not support the use of a significant level of force.”

The court found that the policeman’s use of force so exceeded the threat posed by Mr. Bryan that it denied his request for immunity for his actions and for a quick dismissal of the case against him. Instead, the judges will allow the case to go forward.

This is truly good news. If you’ve been reading these pages for some time, perhaps you’re tired of how often I point out some excesses of Taser use, but it’s a very serious problem, and will only get worse as technology provides authorities with more and more weapons that leave little or no evidence when they’re abused.

One might slough this decision off as something handed down by an “activist” court; more than half of the Ninth Circuit judges were appointed by Presidents Carter and Clinton. Judge Wardlaw, who wrote this decision, is a Clinton appointee, and has been reported to be on President Obama’s list for possible upcoming Supreme Court nominations. And perhaps it’s true that the more conservative Fifth or Tenth Circuits would have decided differently.

As it stands, though, unless the U.S. Supreme Court is asked to review this case, agrees to, and overturns the decision, this will have a profound effect on the use of Tasers by police departments through the country.

And it should.

Dissecting a patent

Around two and a half years ago, the U.S. Supreme Court unanimously limited patents for the “predictable results” of “ordinary innovation.” At the time, my comment on that spoke full agreement:

I’m thrilled to see this decision. I’ve personally reviewed many computer software patents that I’ve considered to be obvious extensions or combinations of existing technology, and I’ve shaken my head and said, “Geez, who decided that this patent should be issued?” Maybe there’ll be less of that now, and maybe we’ll actually have to do some real innovation to get something patentable.

Alas, no. Two and a half years later, the U.S. Patent and Trademark Office is still issuing patents for the predictable results of ordinary innovation, obvious combinations of existing technology. The IBM Research blog has just highlighted a recent example. Of course, they’re presenting it as an example of an innovative patent by an IBM researcher... and I don’t mean to criticize the researcher, here: the system described in the patent is a useful one, the pressure to patent is high in large companies, and this is a well written patent.

It’s just not a particularly striking bit of innovation.

U.S. patent 7,610,187 has just one independent claim, a claim to the following method (paraphrased here):

1. A client requests content from a content feed (such as RSS or Atom).
2. The system identifies the client’s desired language (perhaps from a tag in the request, or perhaps it’s been pre-configured).
3. The system retrieves the content feed.
4. The system translates the content from its language into the desired language.
5. The system gives the translated feed to a feed aggregator.

From my point of view as a user of this, I would subscribe to a feed without regard to its language (perhaps I tell my feed reader to include a news feed from Le Monde). When I see the items in my feed reader, they’ll have already been translated into English for me. Machine-translated, of course, and I have to be aware of the limitations of that, but it’s still pretty useful.

Let’s look at what’s new here.

Machine translation, of course, has been around for a long time — decades, at some level, and on the web since pretty close to its beginning. Babel Fish was the earliest one on the web that I’m aware of; there are many more now.

Proxies that manipulate data have been around for a long time as well, also decades. Just looking at it from the point of view of web servers and services, we can find proxies that filter objectionable content, proxies that reformat content for different devices (make pictures smaller and rearrange layout to send to your mobile phone, for example), proxies that turn one data encoding into another, and so on. That’s not new.

In fact, here’s a patent by AT&T from 1999, U.S. patent 5,875,422, “Automatic language translation technique for use in a telecommunications network,” which does exactly this, in different words. It covers speech or text; communication by telephone, computer, or fax; addressing through telephone number or IP address; language preferences obtained in various ways; and so on.

What’s new in the IBM patent are the content feed and the feed aggregator (reader).

Is that significant innovation? Or is that “ordinary innovation”, showing “predicable results” of normal technology development? It’s clear to me that it’s the latter: it’s just a matter of where the data’s coming from and where it’s going after it’s translated. What’s stopped us from adopting this sort of thing before now is the quality and reliability of the translation, not the lack of innovation in putting the pieces together.

There are natural-language-translating web proxies available, which will basically behave as though you got the web pages and then told Google to translate them for you. Such a web proxy would now, if it were used to retrieve an RSS feed, be infringing on this patent. Of course, before this patent was issued, that same proxy infringed on the AT&T patent from 1999. And so it goes.

What this says is that the 2007 Supreme Court decision has had no effect on the U.S. Patent and Trademark office. The decision’s effect will be limited to court cases — if, for example, someone should challenge this new patent on the basis that it merely patented ordinary innovation — but these sorts of patents will continue to be issued, and their existence will continue to frighten away those with other, novel ideas, who are unwilling to risk being on the wrong side of a legal notice.

That’s not what the patent system was meant for.

Tasers again: this time, a study

New Scientist reports on a study that shows that “[u]sing a Taser to subdue a violent suspect is safer than police batons and fists.”

The team examined over 24,000 cases where police had used force, including almost 5500 incidents involving a Taser. After controlling for factors such as the amount of resistance shown by the suspect, they found that Taser use reduced the overall risk of injury by 65 per cent.

Despite the cases of deaths and serious injuries from Tasers, I have no doubt of the conclusion here: beatings are obviously likely to cause injury or death also, and are probably harder to keep under control.

But the key phrase here is “to subdue a violent suspect.” Not to coerce an uncooperative person. Not to quiet someone who’s being loud or boorish. And certainly not to punish someone who has, well, you know, just annoyed the officer, nor because the officer can’t figure out how to non-violently subdue a ten-year-old girl.

We see Tasers used over and over for those other purposes, purposes for which they aren’t meant. I would hate to see someone read an article about this study and conclude that such uses are, therefore, justified.

Driven to distraction: aware of the risks?

A month ago, I talked about a New York Times article about distracted driving. And last year I discussed the issue of sending text messages when you’re supposed to be paying attention to what’s around you.

This weekend, the New York Times presented another example: a 19-year-old in Utah who was texting while driving, crashed into another car, and killed two. The incident resulted in a new Utah state law that makes driving and sending text messages at the same time... illegal.

That’s fine — it certainly should be — but why does texting need to be called out explicitly? Here’s why:

Still, county prosecutors thought they were unable to charge Mr. Shaw with something other than “left of center.” For instance, if they wanted to prove Mr. Shaw guilty of negligent homicide, a misdemeanor, they would need to show he knew of the dangers or should have known of the dangers of texting while driving.

That would seem to be easy to show, don’t you think? Everyone knows texting while driving is dangerous, and you shouldn’t do it. Everyone knows. Don’t they?

Prosecutors and judges in other states already have the latitude to use more general reckless-driving laws to penalize multitasking drivers who cause injury and death. In California, for instance, where texting while driving is banned but the only deterrent is a $20 fine, a driver in April received a six-year prison sentence for gross vehicular manslaughter when, speeding and texting, she slammed into a line of cars waiting at a construction zone, killing another driver.

But if those prosecutors want to charge a texting driver with recklessness, they must prove the driver knew of the risks before sending texts from behind the wheel.

Come on! This is common sense, people; no one should have to prove anything. We just need to accept that anything that takes your attention away from driving is dangerous, and that everyone is presumed to know that. Teach this to people in diving class, put it on the driver’s license exam, and make it a condition of being allowed to drive that you know that. No one should have to prove whether you understood that it’s a hazard to, while you’re driving, read the newspaper, play a guitar, have your (fairly large) dog in your lap, shave, or do your eyelashes — all of which I’ve seen on the road at 50 miles per hour and above.

And no one should have to question whether you were away that typing on a minuscule keyboard while driving could get you and others killed.

More broadly, Mr. Swink said, drivers in Utah are now on notice that texting while driving is inherently reckless. And as drivers across the nation become more aware of that notion, he said, judges and prosecutors will feel more comfortable asking for big penalties. He said the Shaw case helped to pave the way.

Good on you, Utah. But this just needs to be standard procedure: everyone needs to be on notice, in and out of Utah.

Driven to distraction

In Driven to Distraction: Drivers and Legislators Dismiss Cellphone Risks, the New York Times tells us of Christopher Hill, of Oklahoma City. Last September, at the age of 20, Mr Hill hit an SUV at 45 miles per hour and killed its driver... because, as he freely admitted, he was using his cell phone and didn’t see the red traffic light.

Later, a policeman asked Mr. Hill what color the light had been. “I never saw it,” he answered.

Despite that “[e]xtensive research shows the dangers of distracted driving,” despite that “[s]tudies say that drivers using phones are four times as likely to cause a crash as other drivers,” people continue to use their phones, hand-held or hands-free. They make voice calls, they text. They use other devices — CD players, MP3 players, GPS systems, and others — that seriously distract them from driving. Those distractions often result in horrific collisions that would never have happened if the drivers involved had been, well, driving, rather than playing with their electronics.

We’ve always had distractions in the car. Parents have dealt with their children, people have fiddled with the radio, smokers have lit cigarettes while driving for decades. But it’s just getting progressively worse as we adapt more technology to the car. More, and smaller technology.

Remember when the car radio had a large button to turn it on and change the volume, and six large buttons to select predetermined radio stations? Compare that to finding a CD (do you find the writing as small and hard to read as I do?), taking it out of its case, ejecting the CD that’s already in the player, putting it somewhere, and inserting the new one into a narrow slot. You may well have crashed before you found the “eject” button. And scrolling through songs on a minuscule iPod screen, or entering an address with the touch-screen of your navigation system may be even more challenging to attention that should be given to the road and the traffic around you.

Then here’s another thing: the studies don’t just show that handling the cell phone is dangerous. Sure, when you have to look at the phone to enter a phone number or find someone in your address book, you’re especially vulnerable. But even with a hands-free system and voice calling, just having a conversation on the phone is dangerous — almost the same danger, whether you’re holding the phone or not.

Having a conversation with someone who is not present, it turns out, is what’s far, far more distracting than you imagine. Partly, it’s that a passenger who’s present can help keep a watch, and will at the very least adjust the conversation to allow for traffic issues. And partly, it’s that talking with someone who isn’t there is cognitively different, engaging brain functions that need to be focused on the task of guiding your one-ton hunk of metal safely through the obstacle course around you.

And yet, the denial continues:

“It’s not as if you are going to be able to take this away from people,” [Joe Berry, Ford’s director of business and product development] said of phones and other devices in cars. “They simply won’t give it up.”

Mr. Berry compared the situation to eating unhealthy foods. “We, as people, don’t want to stop doing things that aren’t in our best interest,” he said.

Well, yes, but, you see, if you stuff yourself with doughnuts, and fried cheese dipped in mayonnaise, you aren’t going to suddenly become a missile capable of taking out a hapless family two lanes over.[1] If you want to eat yourself into your grave, that may be sad, but it doesn’t affect random victims on the road. This is very different.

You are going to take this away from people, if you can get legislators with the backbone to do what has to be done and executives to enforce the laws. They key is to stop listening to the whining about what people want to do, and to start holding them accountable for what’s not safe. People want to speed, too, and people do. But that doesn’t stop us from passing laws against it and giving out speeding tickets, does it?
 

---

[1] Unless, of course, you should have a major MI while you were driving, but the timing isn’t likely to play out that way.

New Hampshire joins the enlightened

Jeopardy!®
State Laws for $400:

All of New England except Rhode Island... and Iowa.

[Ping!]

“What U.S. states have non-discriminatory marriage laws?”

 

Yes, indeed; as of the first of 2010, New Hampshire — also in the news as the home of outgoing Supreme Court Justice David Souter — will allow people to marry, without regard to what sexes they are. It joins Massachusetts, Connecticut, Maine, Vermont, and Iowa, an interesting blend. I’m curious to see whether Rhode Island (state motto: “Don’t blink: you’ll miss us!”) follows suit, to fill out New England.

Of course, if you’ve spent any time reading these pages, you already know how strongly I agree with fixing this problem, and spreading sensible non-discriminatory laws to all states. So I only have two small things to say about New Hampshire’s law.

1. I often wonder about the “effective dates” of laws. Sometimes it makes sense, allowing time for re-tooling or other real changes that have to be made in order to comply with or implement the law. But sometimes it seems arbitrary. What changes really have to be made for this that will take six months to effect? It seems that someone just needs to print new forms that say “Party A” and “Party B” instead of “Wife” and “Husband”, and they could start issuing these marriage licenses tout de suite. Is there really a good reason that a couple of gay Dartmouth students should have to wait six more months, or else drive across the bridge into Vermont?

2. Much has been made of the compromise wording, put in to comfort religious groups that are opposed to the law. It’s actually been toned down a bit from an earlier version, but things have been up and down:

The committee last week recommended changes further emphasizing the rights of religious groups not to participate. They include a preamble to the bill that states, “Each religious organization, association, or society has exclusive control over its own religious doctrine, policy, teachings and beliefs regarding who may marry within their faith.”

Now, some people demanded this to “protect” religious organizations from being “forced” to perform same-sex marriages, and some are outraged that this wording was allowed in. I say: What’s the big deal? It’s both unnecessary and harmless.

As far as I can tell, no church has been forced to marry any couple in the past. Churches always have the option to decline to join interfaith couples, if their sensibilities go against such a provocative thing. A church can always refuse to hold a wedding if both parties do not adhere to the tenets of the church. And plenty of straight people have had to search far and wide to find priests, rabbis, and ministers who would perform their ceremonies.

This is no different. It allows any couple, straight or gay, to get a state license, and to have a legal marriage in the state of New Hampshire. If they want magic words and incense, they still have to go looking for that, with or without the law’s preamble.

One final thing:

Kevin Smith, director of the Cornerstone Policy Research, a group opposing the bill, said lawmakers “rammed this legislation through” in a way that “reeks of backroom deals and a subversion of the legislative process.”

Yes, well: I made no judgment about what happened in this case, but see here and here about backroom deals and subversion. This law is direct and to the point.

On psychics and fraud

Les, at Stupid Evil Bastard, talks about this news item:

A San Francisco woman who advertised herself as a psychic has been sentenced to two months in jail for bilking a love-sick customer out of $108,000 and talking her into buying her a sports car in exchange for purifying her of evil spirits, Santa Clara County authorities said Tuesday.

Lisa Marie Miller, 27, of San Francisco victimized a woman who “sought her out because she was in love with a fellow who was not returning her affection,” said Deputy District Attorney Cherie Bourlard. The woman contacted Miller in 2005 after seeing a newspaper ad that offered a $10 reading.

Miller convinced the woman that she was cursed and needed “spiritual cleansing,” authorities said. The woman gave Miller $108,000 from her checking, savings and retirement accounts as well as cash, jewelry and gift cards. She also financed a Corvette for Miller, authorities said.

Now, at one level, this unnamed “San Francisco woman” is very much like the Nigeria-scam woman: they both were taken for a great deal of money through situations in which they should have known better, in which most people would have known better. On the other hand, for some reason there seem to be a great many people who are taken in, at least somewhat, by the whole “psychic” scam. Otherwise intelligent people often say that they think “there’s something to it”, that it’s not completely bogus, despite all objective evidence that it is, in fact, completely bogus.

Yes, completely. Every attempt to show that it has any legitimacy has failed, and many charlatans have been exposed over the years. If there’s anything to it at all, despite that, no one has yet figured out how to channel it for real.

But that failure is not for lack of trying, and we all know that there are a great many people out there who lay claim to being psycho psychic, and who suck money from people — usually a lot less money than this — with those false claims.

And so we get to a point Les makes that I want to look at more closely. He notes that she was charged with “theft by false pretense”:

So I’m wondering what the crime actually is? How do they prove that she didn’t cleanse the “victim” of evil spirits[? ...]

I’d be curious to see what the false pretenses supposedly are. How is what she did any different than, say, Sylvia Browne who charges $850 for a phone reading?

Indeed, an interesting thought: when does one cross the line between fraud and... um... fraud? Between, I guess, just-for-fun fraud and criminal fraud?

Is it a question of the amount of money? The number of incidents? The promises you make? Surely not that last: why should it be OK to promise to tell one’s future, or to talk with one’s dead relatives, but not to “cleanse one’s spirit”? They’re all equally ridiculous. And the practitioners are all equally fraudulent.

But why should cheating someone out of $50, or $100, or $850 not be criminal too? Surely it is, in other contexts. If I take $850 from you for a Rolex watch, and I give you a $10 watch from K-Mart, I’ve committed fraud. So, if I take $850 from you to tell your future, and I tell you random, meaningless crap (And what else could I tell you?) haven’t I done the same?

Why are any of these people allowed to practice? Why aren’t they all rounded up and shut down?