Skating on Stilts

Terror-foiling Spam?

I'm fond of stories about hapless terrorists, first the booty-calling terrorists who killed their own operative, and now a suicide bomber foiled by ... spam.  It begins routinely enough, as a Russian terrorist prepares to blow herself up during New Year's celebrations in Moscow:

An unnamed woman, described as a ‘black widow’, was set to detonate a belt of explosives in Red Square .... The bomb, like a number of home made explosives used by militants or terrorists around the globe, was set to be triggered via a cell phone signal, specifically a text message.

There was just one problem.  The phone was apparently set to detonate when it received a text message -- any text message at all.  Not much of a problem, the killers must have thought, since no one had the woman's number.  But they reckoned without her mobile provider, which seems to have sent every phone on its network a message saying "Happy New Year."  

And happy it was for a bunch of people who would otherwise have been victims:

According to a report by The Daily Telegraph, a text message wishing her a “Happy New Year” was sent to this woman by her mobile phone provider, causing the connected explosive device to detonate.

The would-be terrorist was apparently wearing (or near) the belt when the spam came in.  She died in the blast.  In a just world, she'd have had just enough time to hear the "ding" of an incoming message and to say, "What the ...?"

Jesse "The Wussy" Ventura?

Jesse Ventura, who has been sliding into weirdness for a while, is reportedly preparing to sue TSA for:

 "Warrantless, non-suspicion-based offensive touching, gripping and rubbing of the genital and other sensitive areas of his body," that meets "the definition for an unlawful sexual assault.”

Maybe his real beef is that he used to get paid big money to be touched like that on TV, and now he's just treated like everybody else.  The story points out that he used to be less of a wuss:

In 2001, in the days after the September 11th terrorist attacks, then-Governor Ventura said increased scrutiny would be acceptable.

"We're at war and we're at war inside our own country," Ventura said on Sept. 27, 2001, "something we've never seen or heard of before inside the United States of America. I don't think you can be too careful and people are just going to have to accept a little bit of inconvenience."

BONUS THEME CONVERGENCE:  Matt Drudge chooses to draw his readers' attention to the lawsuit by linking to a story in the truther-tainted PrisonPlanet -- and this time without the excuse of major Drudge-suckage in the story. 

Cyberscam hits OECD

You may have seen a headline like this recently:  “Risks of cyber war 'over-hyped' says OECD study”.  Maybe you breathed a sigh of relief, or renewed your determination not to let the military-industrial complex scare people into ill-advised schemes to “protect” the Internet.

I scratched my head.  I’m on record as thinking that Stuxnet clearly establishes the likelihood of cyberwar in the future.  Stuxnet proved just how easy it is to sabotage a sophisticated control system with malware.  Surely governments won't ignore the military advantage to be gained from cutting off electric power in its adversary’s territory.  A moment’s thought shows that cyberweapons will be part of war for the foreseeable future. 

So how can the OECD, a prestigious think-and-do-tank for thirty or so of the world’s richest nations, simply dismiss this likelihood as “hype”?

It wasn’t easy. 

As far as I can see, the whole thrust of the report depends on the notion that "cyberwar" must be defined as something that happens only in cyberspace, and that such a conflict -- in which the combatants only use computers to attack each other -- is unlikely. 

Okay, you might say, but about cyberattacks by hostile governments on our electric grid using weapons like Stuxnet?  Is that possibility "over-hyped"?  Oh, that kind of attack, say the authors, that’s not cyberwar, that's just cyberweapons.  And as for cyberweapons, well, the prognosi is grim: “It is a safe prediction that the use of cyberweaponry will shortly become ubiquitous.”  

So when the lights go out, we can apparently draw comfort from the fact that we aren’t in a cyberwar, we’re just freezing in the dark because of cyberweapons. 

What gives?  Are the authors of the OECD report just fusty academics intent on enforcing peculiar distinctions that no one else shares? And did the press just fail to grasp the point about, you know, cyberweapons becoming ubiquitous soon?

Or was the report written to produce misleading headlines? 

Here’s one clue:  The word “over-hyped,” which the BBC headline puts in quotes, doesn’t appear in the report at all. That seems to be the spin put on the report by the authors after it was released.

Here’s another, in this quote from the report: 

Analysis of cybersecurity issues has been weakened by the lack of agreement on terminology and the use of exaggerated language.… Cyberespionage is not a “few keystrokes away from cyberwar”, it is one technical method of spying. A true cyberwar is an event with the characteristics of conventional war but fought exclusively in cyberspace.

The bolded sentence is the authors’ attempt to back up their claims of hype.  Their target is probably Richard Clarke, who recently told NPR :  “The difference between cybercrime, cyber-espionage, and cyberwar is a couple of keystrokes.” 

So why is this an exaggeration?   Because, say the OECD authors, cyberespionage is simply a “technical method of spying,” while cyberwar is a war that's fought only in cyberspace.  So Clarke is guilty of exaggerating because he doesn’t subscribe to the OECD authors’ weird and unintuitively narrow definition of cyberwar.

Worse, and almost laughably, the authors have entirely missed Clarke’s point about keystrokes.   Here’s his full quote: 

The difference between cybercrime, cyber-espionage, and cyberwar is a couple of keystrokes. The same technique that gets you in to steal money, patented blueprint information or chemical formulas is the same technique that a nation-state would use to get in and destroy things.

Clarke is saying, accurately, that anyone who can get into a system to steal money or secrets can cause the system to fail with a couple more keystrokes.  That’s important , because everyone agrees that cybercrime and cyberespionage are rampant.  If those things are easy and common, then it’s a near certainty that cyberwarfare will soon be easy and common as well. Of course, if they understood Clarke's point, the OECD authors might have acknowledge its force.

One last clue that there might be an agenda at work here:  The authors are academics from Britain, with a pretty clear set of leanings.  Here’s a line from one author’s an online bio:  “Since 1998 Dr Brown has variously been a trustee of Privacy International, the Open Rights Group and the Foundation for Information Policy Research and an adviser to Greenpeace, the Refugee Children’s Consortium, Amnesty International and Creative Commons UK.”  Somehow, I’m guessing that not one of those organizations thinks that we should spend more time preparing for cyberwarfare.

The authors accuse others of "hype" and "heavy lobbying" to move the public.  It sounds like those are  topics on which the OECD authors have real expertise.

That’s nice, but I’m holding out for the muscle shirt

BAE has figured out how to use e-ink, the technology in Kindle and other ebook readers, to display variable camouflage patterns on tanks and other war gear.  Says Engadget:

BAE Systems, long known for its wargadgets that blind and obfuscate, has recently announced that it is developing an e-ink camouflage system that displays images on the side of a vehicle which reflect the environment -- and which change in real time.

The Stealth Success of REAL ID

The Center for Immigration Studies and Janice Kephart have released a remarkable new study about REAL ID, the controversial drivers license security requirements imposed as part of the 9/11 Commission’s recommendations.  The law was attacked by civil libertarians as a privacy violation and by the National Governors Association as an $11 billion unfunded mandate.  Reluctant either to wade into the controversy or to visibly retreat, the Obama Administration has been frozen at the stick since 2009, doing little to push the states to comply.

What the Kephart study shows is that, despite all its enemies and despite the Administration’s visible reluctance to act, REAL ID is in fact being widely implemented – and at a cost of roughly 4% of what NGA claimed.  This is good news for security and good news for people victimized by identity theft. 

Rooting for Gabby Giffords

Warm, lively, and impossible to dislike, God love her.  Sometimes everything changes in an instant.  

Will Julian Assange Protect His Book with DMCA Takedown Notices?

Julian Assange is writing a book -- and expecting to make somewhere between $1 and $2 million from it.  But his royalties will depend on something he claims to abhor – using government authority to control the distribution of information.

Because if a believer in the free distribution of information were to copy Assange’s book and post it on a U.S. website, Assange or his publisher could insist that the website owner take the infringing copy down immediately under threat of action in US courts.  Failure to take down the book would subject the website to massive damages under the Digital Millennium Copyright Act. (This post assumes that Assange won’t do what I did with Skating on Stilts -- make the book freely downloadable under Creative Commons license -- but I’m betting that he and his publishers are too greedy to do that.  Oh, sorry, I mean he needs to "recover his legal fees.")

Now you’ll have to admit that there’s some irony in this.  Assange’s Wikileaks got the equivalent of a takedown notice from  the US government, and he gave them the finger.  In fact that conflict is what makes his book worth the royalties that he’s going to get.  But now he and his publisher are going to rely on United States law to do for them exactly what he refused to do for the United States.  Except this time the takedown notice will protect not lives, but Assange’s income and his publisher’s profits.

Speaking of his publisher, when it signed Assange to the book deal, Canongate Books was giddy with enthusiasm for how he was changing the world:  "WikiLeaks has helped redefine our idea of investigative journalism and our understanding of how information should be disseminated,” its spokesperson said.

All righty, then.  Now that Americans’ “understanding of how information should be disseminated” has been so bluntly redefined by Wikileaks, is it time to show Julian Assange and his publishers that redefinition is a two-way street?  In short, why doesn’t Congress simply take away the takedown rights of Assange and his publishers?  Let them live in the world he’s helping to build.

I don’t propose here to work through all of the issues that such a law would raise.  I’ll leave that to the comments – and perhaps to Eugene Volokh, who has already debated a related issue with me here.  But the most  obvious question is whether a selective withdrawal of copyright remedies will pass constitutional muster. That analysis starts with Simon & Schuster v. Members of NY State Crime Victims Bd., 502 US 105 (1991). Fearing that the “Son of Sam” serial killer would write a book about his crimes, New York imposed a statutory escrow on royalties from books describing a criminal defendant’s crimes; the proceeds were to go to the criminal’s victims rather than the criminal.  On review, the Supreme Court said, in essence, that strict scrutiny applied to the selective denial of compensation for a fundamental first amendment activity like book writing.  The Court thought that preventing criminals from profiting from their crimes was a compelling state interest.  But the statute was not well tailored; it would have applied to a lot of perfectly respectable books that mentioned in passing a crime committed by by the author.  So the law failed the Court’s strict scrutiny.

Does that analysis make it unconstitutional to deny DMCA remedies to Assange and his publishers?  I’m not convinced.  For two reasons.

First, the DMCA takedown provisions are not core copyright rights.  Rather, they are part of a carefully limited remedial compromise that gives online service providers protection from massive liability if they comply with takedown notices.  This compromise recognizes that the online service provider is serving a first amendment purpose when it allows people to post material without undertaking lengthy copyright reviews.  But to avoid those reviews, the service providers need to be protected from massive liability; that protection is available if they follow the takedown process.  In short, there are first amendment interests on both sides of the line drawn by the DMCA.  That’s why the right to get a quick takedown is not available if the poster of the material promptly claims not to be infringing; and why takedown notices must meet very specific format requirements to have any effect. And, most important, that’s why I question whether we should treat limits on the takedown requirement as though they were presumptive first amendment violations.

In fact, as far as I know, we don’t do that with other restrictions on copyright remedies.  For example, the copyright damages remedy is quite limited unless you register your copyright in advance.  Or, to take a judge-made remedial limit, copyright plaintiffs have to show that they have “clean hands,” an anti-hypocrisy doctrine that Congress might reasonably decide to apply to Assange and his publisher.  Are these limits on harsh copyright remedies unconstitutional if they don’t serve a compelling interest in the narrowest possible way?  I don’t see how they’d survive such a test.  That way lies madness for the copyright bar.  (Not that they don’t deserve it!)

Second, Congress probably wouldn’t deny Assange a takedown remedy just because it doesn’t like him.  It might decide to bar takedown remedies that benefit, oh I don’t know, criminal defendants who refuse to show up for their trials, say.  Or it could decide to delay the takedown remedy until a hearing to resolve any claims against the author by the United States government or other victims of the author’s torts.  By the time that litigation was done, even if they won, I’m pretty sure that Assange and his publisher would have gotten a full taste of just how thoroughly their model for dissemination of information could be redefined.

As I said earlier, this isn’t a finished piece.  It’s more akin to one of Mickey Kaus’s “assignment desk” posts than a full-blown legal analysis.  I’d welcome thoughtful legal comments.  And maybe somebody else will want to write an article on it.

Or a law.

How to tell the difference between a European border fence and an American border fence

They only look the same.  But the difference is clear.  An American border fence isn't reasonable; it treats ordinary people like criminals.  A European border fence, in contrast, is an unfortunate "short-term measure" that supplements more structural solutions. 

Here's what Brussels is saying today about Greece's fence: 

The Greek government says it plans to build a fence along part of its border with Turkey to try to stop illegal immigrants from crossing into the country.

But the announcement was met with a warning from European Union Commission spokesperson Michele Cercone.

"Fences and walls have in the past proven to be really short term measures that do not really help addressing and managing the migratory pressures in more consolidated and structural way," said Cercone.

http://www.voanews.com/english/news/Greece-Plans-to-Build-Controversial-Border-Wall-112933139.html

Moral clarity was somehow easier for the European Union to find a few years ago, when Javier Solana, the EU's foreign policy chief was needlessly injecting himself into the debate about our border fence:

"A wall that separates one country from another is not something that I like or that the European Union members like," Solana said at a news conference in Mexico City. "We don't think walls are reasonable instruments to stop people from crossing into a country."

The EU believes immigrants should be treated "like people, not like criminals," he said.

http://www.breitbart.com/article.php?id=D8OIPMHG0&show_article=1

Time for an American moral-preening speech in Istanbul about the evils of border walls?