Recently in Free Speech Category

My hometown paper, The Washington Post, has a (for once) terrific and thoughtful article on the public policy and employment law implications of social networks: that which you have done in the past but recorded for your own memory, can now be easily used against you. Quoth the Post:

It's almost like Googling someone: Log on to Facebook. Join the Washington, D.C., network. Search the Web site for your favorite school system. And then watch the public profiles of 20-something teachers unfurl like gift wrap on the screen, revealing a sense of humor that can be overtly sarcastic or unintentionally unprofessional -- or both.

One Montgomery County special education teacher displayed a poster that depicts talking sperm and invokes a slang term for oral sex. One woman who identified herself as a Prince William Countykindergarten teacher posted a satiric shampoo commercial with a half-naked man having an orgasm in the shower. A D.C. public schools educator offered this tip on her page: "Teaching in DCPS -- Lesson #1: Don't smoke crack while pregnant."

Sarcastic? Yeah. Unprofessional? I'm not so sure. I think the danger begins when you identify yourself by your employer. While we were all proud to post that first job on Facebook, many of us neglected to take down photos or change profiles. And then they caught on. I saw an old employer's H.R. director on Facebook. As much as I considered her a friend, there were parts of my life I wasn't comfortable sharing. So, I blocked her. I also went through the trouble of blocking the network of another employer from viewing this sight. Hindsight being 20/20, many of them have written to me since unblocking it in complementary terms, but I did out of an abundance of caution, not to mention never making a single reference to where I worked or what I did for living. I live a very public life (or as my friend Andy Beal says, a Radically Transparent lifestyle - BUY HIS BOOK!).

I know that employers will look at that page, and I need to be more careful," said Webster, adding that other Prince William teachers have warned her about her page. "At the same time, my work and social lives are completely separate. I just feel they shouldn't take it seriously. I am young. I just turned 22."

many school systems are wrestling with the problem, as teachers are in a way, public figures, and certainly role models. To the credit of some systems, they aren't reacting in a knee-jerk fashion. Pulled on one hand by the need to maintain reputations, but on another by the need to recruit quality teachers who are enthusiastic about their jobs (anecdotal evidence shows young adults with healthy personal lives have better interpersonal and workplace skills) they are walking a fine tightrope, and to some, it may come down to a Justice Potter Stewart-style "I know it when I see it" mentality which some smart employment lawyers are going to have to codify.

Local school officials say they have no policies concerning social networking pages or blogs kept by teachers. But they said that online improprieties would fall under general guidelines requiring proper behavior in and outside school and that sketchy Web sites would be handled case by case.

"I hate to think of what's out there. . . . There's so much out there that it's hard to know what's there," said Ken Blackstone, a Prince William schools spokesman. "But as public employees, we all understand the importance of living a public life above reproach."

Above Reproach? Get thy recruiter to a nunnery, Mr. Blackstone! Here is the sad truth, you will find eager young men and women who want to be teachers. Inspired by one of their own, or driven by a calling or desire to help or do good, they apply for underpaid, overworked positions which are afforded little respect by parents or the institutions which they serve. 

CNN reported it as speculation last week, but it's true. Israel has jailed one of its' soldiers for Facebook photos. H'aaretz reports:

A soldier from the elite Intelligence Corps unit "8200" was sentenced to 19 days in prison for uploading photos taken on his base without approval to the popular social networking site Facebook. 

This is the first time the Israel Defense Forces has sentenced a soldier to military jail for an offense of this sort. 

The Israel Air Force has recently instructed all servicemen under their command who are serving in sensitive units to remove any photos they may have uploaded to Facebook. 

Of course, this doesn't apply to most of the other IDF citizen-soldiers, who aren't in classified units, but I wonder what would happen if Facebook finally gave Palestine its' own network and militants started posting photos of themselves with their AK-47s...remember the guy who asked Zuckerberg why Palestine doesn't have a network? He should be smiling right now...

Lo and Behold, Mark Zuckerberg did appear, and answered pretty much every question asked. Some good, some not so good. My favorites:

A U.S. Districts Judge went back on his decision to prohibit a website from posting bank records from various off-shore banks.  The initial deceision was based on a lawsuit filed by a Swiss Bank, Julius Baer.

 

Here are some of the details from Reuters.com

By Philipp Gollner

SAN FRANCISCO (Reuters) - A U.S. judge on Friday reversed his earlier ruling shutting down a Web site with private bank data from Switzerland's Julius Baer Holding AG.

U.S. District Judge Jeffrey White reversed his February 15 order after hearing arguments by attorneys from the American Civil Liberties Union and other free-speech groups that his decision amounted to unconstitutional prior restraint.

"There are serious questions of prior restraint and possible violations of the First Amendment," White ruled from the bench in his San Francisco courtroom.

"The court has serious questions whether those concerns raised before the court make the granting of the relief requested by the plaintiffs constitutionally appropriate," he added.

White ruled that Baer, based in Zurich, could continue with its lawsuit against the Web site, Wikileaks.org, and Dynadot LLC, the Web site's domain-name registrar. White had issued a permanent injunction on February 15 ordering Dynadot, based in San Mateo, California, to disable the Wikileaks.org domain.

Baer had sued Wikileaks and Dynadot earlier this month after the site posted documents including bank records of about 1,600 clients with accounts in a Baer subsidiary in the Cayman Islands.

 

So the ACLU is defending the consitutional rights of someone who is posting other people's bank records on the internet.  Maybe it's my immense lack of any sort of legal training or degree (remember, I am NOT a lawyer) but common sense would seem to agree with the original ruling, which I'll paraphrase below -

 

Don't publish bank records that aren't yours on the internet!

 

I was going to write more, but I'm quite frankly baffled.  The article goes on to say explain how Swiss banks are used as a haven for the wealthy looking to hide their money from the IRS.  It also mentions that the poster of the records is a self-proclaimed "whistle-blower."  That's all well and good, and maybe the use of Swiss and other off-shore banks to facilitate illegal activities should be put into the spotlight.  But placing private citizens' bank record on the web for quite literally the entire world to see is not the right way to do it.

 

Committing one crime to expose another just weakens your cause.  It sucks, but you need to stay within the law in order to enforce it.  Sure, the Batman lover in me says "The system doesn't always work.  Get the crooks by any means.", but this isn't Gotham.

 

As much as I'd love to see the "bad guys" get taken down I don't want a precedent set where anyone who gets a hold of my bank records (and it wasn't mentioned how the records were obtained) can post them for all to see.  Granted, it's because I have so little money that it would be painfully embarassing, but I think you all see my point.

 

If anyone wants to weigh in, please leave a comment.

So one of my regular reads is the Google Blog. Recently, I've been writing about some of their entries, and it's been driving some traffic this way since they link to posts that link back to them.

Today around 10:30 am I read a post on Google Blog about their new Google Health product that described it and showed some screen shots. I thought "wow, that's a bad idea" and I so I took a lunch break, threw together my thoughts and posted them here on this site. The post went live at 12:00pm EST.

Now, I had been busy at work, but earlier (around 9:45am EST) I had checked the Google Analytics for the site and the visitor count was low since neither Alex nor myself had posted anything new since last night (2/27/07). Maybe an hour after I posted I went back and was a bit shocked, the visitor count had gone through the roof. I looked at the Google Blog, and out of all the links shown on the "Links to This Post" list, mine was the only one with a remotely critical title, "Google Health is Frightening." The rest were either simply linking or re-reporting with various degrees of fawning and praise going on. Yet, there was my post on how I thought it's a horrible idea, and that any doctor would be insane to use it, and that there were probably legal issues that hadn't properly been considered.  It was maybe the 5th link in the list.

Around 4:00PM EST I noticed the hit count slowing. I went back to the source (the original Google Blog post), and lo and behold, the post had every single link/trackback deleted.

Not only that, but they turned off the trackbacks for every single post on the blog, but didn't remove the presence of the feature from their front page template! Look! Straight-up cut-and-paste job from their front page as of 10:30PM EST:

Here is a screenshot deeper in the application:

We're proud of the product that we've designed and are continuing to build, but recognize that we are just at the initial stages of our "launch early and iterate" strategy. We look forward to the feedback we will receive from our Cleveland Clinic pilot, from all of you, and from the initial users of our service when we make it publicly available in the coming months.

Permalink Links to this post

Labels: healthcare

Now, when I went to click on the "Links to this post" link, I got a blank space. Nothing. All the  trackbacks are kaput.

So, it's ok to link to the Google Blog in order to shower them with praises and talk about how revolutionary and wonderful they are...but criticize them or suggest they are heading down a dark path? They'll make you disappear. At least that's what it looks like. Now, I know a lot of tech types don't get Washington, but us Beltway locals have a saying: "the coverup is worse than the crime." You may have heard that before.

Hey, Google Bloggers: want to tell me why you turned off trackbacks? If you give me a real reason, I'll even apologize to you. Heck, I'll fly out to California and buy you all a round of your preferred beer.

But only if you can prove to me that you're not so scared of criticism based on your own blog that the second someone does, you stop linking back.

Your corporate motto is "do no evil" but honestly, this looks like something Steve Ballmer would do. I'm just too far away from the Googleplex for you to throw chairs at me.

So come on, Google Bloggers. Turn them back on, or explain on your blog why they are gone.

I'll be reading. And I'll be writing, too.

Ok, so I've been reading Slashdot since 1998 or so...I have a 4 digit user ID (9848, if you must know), so I've seen alot of stuff pass through those pages. I remember meeting Jeff "Hemos" Bates and the infamous Jon Katz at The Bazaar (a one-off Open Source trade show/love-in where I helped run the Debian Linux booth) and doing some contract work for the company that bought Slashdot (Andover.net, which became OSDN, which got bought by VA Linux, which became VA Software, which I think is now SourceForge). They've broken some interesting stories and were one of the first "must-read" blogs before there was such a word.

They've even acquired enough a patina of credibility through longevity that they can get celebrities and the occasional politician to participate in their "interviews." On the other hand, as they've grown more popular they've had less and less original editorial content, and really have been reduced to a "gatekeeper." They won't link to commentary, even when it's original, only the source story. I've submitted things only to have them pull my words out, put them in the "firehose" where noone sees them (or my work) and just write their own summary and link to the story I found them.

And occasionally they link to total sensationalist trash like this. A former FBI agent named Patrick J. Dempsey has made a startling discover: criminals can use networks to cover their tracks.

Although the Internet may be considered the greatest achievement of the past 50 years, the technology behind it has created a sanctuary for various types of computer criminals. The unfortunate and ugly truth is that the Web is providing a brand new "world" where international cyber criminals can thrive, and the world's numerous criminal justice systems just aren't ready to address these crimes in their entirety.

Cyber criminals don't necessarily need to leave the comfort of their homes to commit their crimes. Today, for example, bank robberies can be committed in Southeast Asia via a computer that's being controlled by an individual in Russia. Identity theft is achieved through a complex network of individuals residing in North America, Europe, and Africa, all effectively working together on the Internet to profit from shared information. And organized crime has ties to spam campaigns, identity theft, denial-of-service attacks, and organized hacking rings.

Is this a joke? This guy's job is "Chief Information Security Officer" at Janney Montgomery Scott, a financial services firm. He has also apparently been living in a cave since 1999 or so. On the other hand, Osama bin Laden lives in a cave and probably knew that the Internet had unsavory elements back when he was using it to plan attacks.  The fact that he's using the term "cyber-" anything makes him horribly dated.

Also, tying organized crime to "spam campaigns, identity theft, denial-of-service attacks, and organized hacking rings?" Did he get his education in Information Security by watching Sandra Bullock in The Net? Also, why is he a "former" FBI agent? Did he retire, or was he fired? Does he have any experience in investigating computer crimes? Does he know anything about computers? I'm curious as to his credentials, because it sounds like he has no clue what he's talking about, or he's using a really outdated Buzzword Bingo card.

But the problem with investigating international cyber crimes and capturing criminals on the Internet is not necessarily due to lack of cooperation among international law enforcement bodies. The issue has much more to do with the fact that the legal systems throughout the world vary greatly and take a very long time to change. These two facts make it extremely difficult for law enforcement to cooperate, investigate, capture, and ultimately prosecute the cyber criminals today.

Oh, so it's not that you can't cooperate, it's those pesky laws...or does he mean lawyers? Maybe Mr. Dempsey was one of those guys that wanted to throw Phil Zimmerman in prison for writing PGP back in the '90s. One more thing. Investigating crimes and prosecuting them are two completely different tasks. I am guessing this man has no law degree, and knows very little about prosecuting criminals.

Either way, Mr. Dempsey has come up with a solution. We need a "new" "more secure" Internet where people will "register" with some kind of "authority." What, like old style AOL? Has he heard of Kerberos or Virtual Private Networks?  All those things allow "registration" with "authority." There's a difference between registration and monitoring...

He throws around terms like spoofing and InterNIC (which by the way hasn't existed since ICANN took over running the world's domain registration system) and talks about "managing a more secure Internet." Whether or not he has a clue what he's talking about, I don't know. It doesn't look that way. His article looks like a cut and paste job from a bunch of sensationalist puff pieces from the Bubble pre-2001 era.

If Mr. Dempsey had done any research he would understand and be able to articulate the Internet is built on 1970's technology designed to survive a nuclear war, that operates based on open protocols and a degree of trust between systems, and requires skilled network managers to keep running. When he talks about a "new internet" he means a more tightly controlled network with systems built in for monitoring and controlling its' use.

The fight against international cyber crime is going to take a concerted effort from large and small corporations, law enforcement in all countries, as well as the governments and legislative bodies of those same countries. Most importantly, the average end user will have to join the fight to bring about change on the Internet, or create a "new" Internet using the lessons we've learned.

What does that mean? Governments and legislative bodies? You mean there is a difference? The biggest change that needs to hit the Internet is adoption of IPv6. If he wants some kind of ubermensch system to keep bad things from happening and bad people from using networks, he's going to have to go back in time or move to China.


I don't think I'm going to read Slashdot as much anymore.

Utah's State Legislature is considering allowing "pre-censored" Internet providers and giving them a special label, according to the Deseret News:

Utah Internet service providers could earn a state-approved "G-rating" for filtering content and insuring that users could not access pornography under provisions in a bill heard by a House committee on Monday.

HB407, sponsored by Rep. Michael Morley, R-Spanish Fork, would require the Utah Division of Consumer Protection to create a designation for providers who prevent access to "prohibited" material. After attaining the "seal of approval," providers would be subject for fines up to $10,000 for violating requirements.

"It's very difficult to figure out a way to monitor the internet," Morley said. "I think it's a positive thing for those who are looking for a site that is dedicated to fighting pornography."

The opponents are Google, Yahoo, etc. Obviously they'd see a decrease in traffic from some Utahn customers, but actually I see this as a good thing. While I'm not a fan of filtering, I do think that it's up to parents to choose what is appropriate for their children. If they want to leave it up to an ISP instead of having to constantly update software that their kids could possibly get around, more power to them. If the market is there for these kinds of "G-rated" ISPs, good for them. Let them make bank.

THE federal Government's plan to have internet service providers filter pornography and other internet content deemed inappropriate for children is going full-steam ahead.

Trials are to be conducted soon in a closed environment in Tasmania.

Today is the deadline for expressions of interest to Enex TestLab, the Melbourne company evaluating internet service provider content filters on behalf of the Australian Communications and Media Authority.

ISP-based filters will block inappropriate web pages at service provider level and automatically relay a clean feed to households.

To be exempted, users will have to individually contact their ISPs.The trial will evaluate ISP-level internet content filters in a controlled environment while filtering content inappropriate for children, Enex said. 

Utah wants an opt-in, market-based solution, while Australia thinks that everyone needs to be "protected" by default and have to go "waltzing matilda" to get out of the filtering system. I'm not so sure why Google and Yahoo! are opposing the Utah bill and not screaming bloody murder about the Aussies. Content providers should support allowing people to choose to not receive their content, that way they can realize how much they use it when it's gone. Let parents get frustrated with their filtered service until they cancel it. 

Yesterday the FCC finalized it decision to fine ABC for showing an episode of NYPD Blue that showed a brief scene of some T&A in a totally non-sexual situation...5 years ago. The FCC ruled that ABC had violated the indecency provisions of the Communications Act of 1934 by showing a woman's...butt.

We reported here last week that ABC had responded that the "buttocks are not a sexual and excretory organ," which a dictionary definition and any medical doctor would surely agree.

In the FCC's Forfeiture Order, dated yesterday (2/19),  the FCC rejects modern medical science for its' own definition of what the Buttocks, which are simply muscles (or in the case of Dennis Franz, mostly fatty tissue) are. Commissioner Robert McDowell, (M.D.) writes:

8.    The Commission has consistently interpreted the term "sexual or excretory organs" in its own definition of indecency as including the buttocks, which, though not physiologically necessary to procreation or excretion, are widely associated with sexual arousal and closely associated by most people with excretory activities.   Thus, the Commission has in many cases treated naked buttocks as coming within the scope of its indecency definition, even though it has not always concluded that particular depictions or descriptions were patently offensive and thus actionably indecent.

9.    The indecency standard that we are applying here was formulated by the Commission to enforce 18 U.S.C. § 1464 through administrative action.   The Commission has broad discretion to interpret and apply the standards and terminology it has developed, as long as it does so in a manner that is consistent with the statute and the Constitution.   In the context of interpreting and applying the statutory and regulatory proscription against indecent programming, it is appropriate to interpret these terms not in a medical sense but rather in the sense of organs that are closely associated with sexuality or excretion and that are typically kept covered because their public exposure is considered socially inappropriate and shocking.   We believe that it is appropriate to use the terms sexual or excretory organs - as we have in the past - in a manner consonant with the purpose of the regulatory regime to protect children from indecent depictions of organs associated with sex and excretion and sexual and excretory activities.  The purpose of indecency regulation, obviously, is not to regulate procreation or excretion, so we do not think a technical physiological definition is appropriate.      
             

10.    Moreover, if we interpreted these terms in the narrow physiological sense advocated by ABC and the ABC Affiliates, the airwaves could be filled with naked buttocks and breasts during daytime and prime time hours because they would be outside the scope of indecency regulation (at least if no sexual or excretory activities were shown or discussed).  We find it impossible to believe that ABC or the ABC Affiliates ever thought this to be the Commission's policy.  In short, while their Responses to the NAL are brimming with medical definitions and arguments, the respondents offer no legal or public policy reason for their argument, and we find it lacking in merit.

So now the FCC is defining what is and isn't a "sexual or excretory organ," merely deciding what organs or areas of the body are associated with sex. Foot fetishists everywhere should be afraid. You know all those Quentin Tarantino movies with long tracking shots of actors' feet? Under this definition, they could be quite indecent.

 It's also a good thing the Sci Fi channel is on cable, and therefore not subject to indecency regulations. You never know where those creepy alients keep those things.

From the Washington Post

By Jonathan Weisman and Dan Eggen

Washington Post Staff Writers
Saturday, February 16, 2008; Page A02

A federal law granting President Bush extensive powers to monitor the communications of foreign terrorism suspects without a court warrant expires today, the culmination of an unusual political game of chicken in which neither side gave way before leaving Washington.

Bush left the country for Africa yesterday after declaring that "our country is more in danger of an attack." With Congress beginning a week-long recess, House Speaker Nancy Pelosi (D-Calif.) practically called Bush a liar, saying he is "misrepresenting the facts on our nation's electronic surveillance capabilities."

Both sides were left weighing whether the lapse of a temporary, technical surveillance law will have political ramifications in November. "This is a grave problem, and the Democrat leaders ought to be held accountable for their inaction," warned House Minority Leader John A. Boehner (R-Ohio).

But the dominant mood on the House Democratic side appeared to be a "take no more guff" attitude, combined with confidence that the Bush administration's credibility is at a low ebb. Democrats accused administration officials of putting the interests of private phone companies above national security.

At issue is a law passed in August that expanded warrantless surveillance powers. Bush wants Congress to make the law permanent, while adding legal immunity for telecommunications companies that were sued for invasion of privacy after helping U.S. intelligence agencies conduct warrantless surveillance under contested authorities. The Senate approved a White House-backed bill, but the House balked.

After the law's expiration, the government will retain substantial surveillance capability, and classified orders allowing the monitoring of international telephone calls, e-mail and other communications under the law are valid for a year, so they will not expire before August.

"There is no risk the program will go dark," said Rep. Sylvestre Reyes (D-Tex.), chairman of the House Permanent Select Committee on Intelligence.

Officials made clearer yesterday that the real dispute is over the immunization of phone companies from past actions. Mike McConnell, director of national intelligence, told National Public Radio yesterday: "It's true that some of the authorities would carry over to the period they were established for one year. That would put us into the August, September time frame. However, that's not the real issue. The issue is liability protection for the private sector. We can't do this mission without their help."

 

So the Government can still, sans warrant, tap my cell phone if they think I'm a terrorist.  That's legal until at least August.  Why the phone companies think they should have retroactive immunity is absurd.  Any cell phone company who is guilty of sharing customer information without a warrant is just that; guilty.  It isn't even a gray area.  All they had to do was say "Come back with a warrant and we would love to help you." and call it a day.  It isn't the Government's fault that they got scared, bent over, and shared customer's information without any legally compelling reason.

 

Here's what Mitch McConnell (R-KY) thinks

"The companies have been waiting for six months for retroactive liability" protection, Senate Minority Leader Mitch McConnell (R-Ky.) said after a White House meeting with Bush. "They are under pressure from their directors, pressure from their shareholders, and you're jeopardizing the entire existence of the company by continuing to do this."

 

They're under pressure?  Really?  Sorry to play the lay-person, as usual, but maybe they shouldn't have broken the law?  It seems to me like that would be the easiest way to avoid a problem like this.

 

Now, even though I am not a terrorist I don't particularly like the idea of someone listening to my phone calls.  And unless the law is compelling you to help the Government listen to my calls or get lists of who I have called your actions are, at the very least, an enormous breach of the trust between us.

Oh, Hanoi Jane. So beautiful after all these years, yet so enraging to vietnam vets, dittoheads, and young republicans everywhere.

Now she may add the "fellas at the freakin' FCC" to their list. Broadcasting and Cable is first on the scene, as usual:

 

Jane Fonda spoke a bit too freely during an NBC Today interview Thursday when she unabashedly used the C-word in discussing her involvement in a staging of The Vagina Monologues.

In an interview with Today co-host Meredith Vieira, Fonda used the slang word for female genitalia in referring to the title of the monologue she was asked to perform. The utterance was unbleeped.

Vieira apologized for the slip-up after the commercial break ended, saying that Fonda "inadvertently said a word from the play that you don't say on television. It was a slip and, obviously, she apologizes and so do we. We would do nothing to offend the audience."

As of this writing, NBC had not returned a request for comment.

The incident comes only weeks after Diane Keaton used the F-word on Good Morning America.

Obviously, the Commission must take action against aging actresses using fleeting expletives on shows viewed by young children watched mostly by...women their age...

Right? Anyone? Anyone? Maarrrrrrtin?

Hollywood's pretty potty-mouths can rest at ease for the moment, though:

Because the reference came during an interview about The Vagina Monologues, the network could run the risk of Federal Communications Commission censure. It remains unlikely for now, though, given the unsettled nature of the FCC's profanity-enforcement regime after a circuit-court smackdown of its profanity finding against Fox.

The FCC essentially conceded that its hands are tied during the legal process, but that might not be the case once the issue is resolved and depending on how it is resolved

But wait, aren't these "news" programs? Don't they get an exemption? Again, "yes, but..."

While the FCC treats news programming differently, such programming is not immune from content regulation, particularly when the FCC concludes that the violation was foreseeable. For instance, it fined KRON-TV San Francisco $27,500 in 2004, then the maximum penalty, for a morning-news segment on the Puppetry of the Penis troupe when one of the puppets was inadvertently exposed.

 

While refusing to rule on whether or not this was actually news, the Commission did have a...hole...for the phallic puppetry to be grounds for a fine:

"The station failed to take adequate precautions to ensure that no actionably indecent material was broadcast despite its awareness that the interview involved performers who appear nude in order to manipulate and stretch their genitalia," the commission said in the KRON case. "Under these circumstances, the airing of indecent material during the interview was clearly foreseeable."

 

I suppose that hidden camera expose on Bert and Ernie will have to be tabled for now.