Law

Mexico’s President Felipe Calderon has sent a proposal to Congress to decriminalize possession of small amounts of heroin, methamphetamine, opium, and marijuana for personal use. This is similar to a proposal that actually passed Congress in 2006 which then-president Vicente Fox said he would sign, but then backed down from after pressure from the United States. The purpose is to free up police and court resources to go after the major drug gangs, which it would certainly do. ...

The Electronic Frontier Foundation has filed Jewel v. NSA to try another tactic in stopping unconstitutional warrantless wiretapping of U.S. residents. Their previous lawsuit against AT&T, Hepting v. AT&T, is still in federal court as the EFF argues with the government over whether the telecom immunity law passed by our spineless Congress is itself constitutional or applicable to the case. Jewel v. NSA names as defendants the National Security Agency, President George W. Bush, Vice President Dick Cheney, Cheney’s chief of staff David Addington, former Attorney General Alberto Gonzales, and “other individuals who ordered or participated in warrantless domestic surveillance.”

In another amusing unintended consequence of the war on drugs, it turns out that the pharmaceuticals most likely to get disposed of into city water supplies are controlled substances. The restrictions on who has access to over 365 controlled substances are such that they can’t be disposed of via normal hazardous waste disposal methods such as incineration, due to the costs of maintaining the controls on contractors who handle and haul away drugs for disposal. As a result, hospitals and assisted living facilities are dumping drugs like codeine, morphine, oxycodone, diazepam (e.g., Valium) and methylphenidate (e.g., Ritalin) down the drains, behind locked doors with a witness to the disposal for record-keeping purposes. The DEA is reportedly working out some modified regulations with the assistance of the EPA.

Radley Balko at The Agitator replies to Jennifer Rubin at Commentary about why the Washington Post’s coverage of Cindy McCain’s addiction to painkillers and commission of crimes to support it is newsworthy. Balko gives two reasons: John and Cindy McCain have touted her addiction an example in overcoming adversity. That presents quite the contrast to McCain’s legislative history as an ardent drug warrior. People accused of crimes similar to those Cindy McCain was accused of committing usually go to prison (even when they’re innocent). Her crimes haven’t been well-reported in the media. And they show how John McCain (who, by the way, is running for president) believes in one set of rules for the friends and family of powerful politicians, and a different set of rules for everyone else. While Cindy McCain’s addiction and theft from her children’s charity to support that addiction were lightly covered at the time, there has yet to be much coverage of it at all during this campaign. And one aspect of the case that’s been covered even less is John and Cindy McCain’s attempt to railroad Tom Gosinski, the guy who blew the whistle on Cindy McCain’s theft from her children’s charity. The Post story is one of the first to get his version of what happened. And Balko concludes: ...

Spammer Julian Jaynes now gets off as a result of a bad decision from the Virginia Supreme Court, reversing its own previous decision from six months ago. The court ruled that the Virginia anti-spam law’s prohibition of header falsification constitutes an unconstitutional infringement of the right to anonymous political and religious speech, suggesting that it would have been acceptable of it was limited to commercial speech. The court’s decision was predicated on the assumption that header falsification is a necessary requirement for anonymity, but this is a faulty assumption. All that is needed for anonymity is the omission of identity information that leads back to an individual, not the falsification of headers or identity information. That can be done with remailers, proxies, and anonymously-obtained email accounts, with no header falsification required. I previously made this argument in more detail in response to the arguments given by Jaynes’ attorney in the press. I also disagree with the court’s apparent assumption that commercial speech is deserving of less protection than religious or political speech. What makes spam a problem is its unsolicited bulk nature, not its specific content.

Yahoo reports: Alaska Gov. Sarah Palin has charged her state a daily allowance, normally used for official travel, for more than 300 nights spent at her home, The Washington Post reported Tuesday. An analysis of travel statements filed by the governor, now John McCain’s Republican running mate, shows she claimed the per diem allowance on 312 occasions when she was home in Wasilla and that she billed taxpayers $43,490 for travel by her husband and children. Per diem payments are meant for meals and incidental expenses while traveling on state business. State officials told The Post her claims — nearly $17,000 over 19 months — were permitted because her “duty station” is Juneau, the capital, and she was in Wasilla 600 miles away. ...

Long-time drug warrior politician Rep. Charles Rangel (D-NY) turns out to be a dirty politician. As Radley Balko of The Agitator puts it: …the chair of the House Committee that writes our tax laws didn’t know that he’d been given an interest-free loan for a luxury Caribbean Villa, didn’t know that he was getting taxable income off of rentals from said villa, and didn’t know that he had a duty to report and disclose and report the $75,000 in income from said rentals that apparently slipped his notice? Riiii-iiiight. This would be the same guy who didn’t know how he somehow was able to accumulate four rent-controlled apartments in New York City, and didn’t know about laws against using rent-controlled apartments for purposes other than a primary residence. ...

Adam Frucci at Gizmodo writes: So, are you enjoying the snappy, clean performance of Google Chrome since downloading yesterday? If so, you might want to take a closer peek at the end user license agreement you didn’t pay any attention to when downloading and installing it. Because according to what you agreed to, Google owns everything you publish and create while using Chrome. Ah-whaaa?This is false. The EULA doesn’t transfer ownership of anything. The provision that has everyone upset is the rather broadly worded provision 11.1: 11.1 You retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Services. By submitting, posting or displaying the content you give Google a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, post or display on or through, the Services. This license is for the sole purpose of enabling Google to display, distribute and promote the Services and may be revoked for certain Services as defined in the Additional Terms of those Services.Note that the very first sentence says that you retain all intellectual property rights. This gives Google the rights to do the things it already does–let other people play YouTube videos you upload, syndicate your Blogger content, store cached versions of your web pages, allow people to see versions of your web pages translated into other languages, display thumbnails of images on your web pages in Google Images search, and so forth. The last sentence appears to limit it solely for the purpose “to display, distribute and promote the Services” and not allow them to, say, use your content in order to compete with you, undermine your intellectual property rights, etc. An earlier provision in the EULA also makes this explicit: 9.4 Other than the limited license set forth in Section 11, Google acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms in or to any Content that you submit, post, transmit or display on, or through, the Services, including any intellectual property rights which subsist in that Content (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless you have agreed otherwise in writing with Google, you agree that you are responsible for protecting and enforcing those rights and that Google has no obligation to do so on your behalf.So even if 11.1 is a bit too broad, there’s this provision to fall back on if you feel your intellectual property rights are being infringed. Some commenters at Gizmodo said that they didn’t agree with this provision and therefore have uninstalled the software, but that’s not sufficient to terminate this agreement. Terminating the agreement requires you to give notice to Google in writing and close all of your accounts with them: 13.2 If you want to terminate your legal agreement with Google, you may do so by (a) notifying Google at any time and (b) closing your accounts for all of the Services which you use, where Google has made this option available to you. Your notice should be sent, in writing, to Google’s address which is set out at the beginning of these Terms.One thing that is clear from these terms is that Google definitely wants to interpose itself between user and content in a manner similar to what Microsoft has done for years with Windows, and in a much stickier way than telecom providers are between user and content. If you have network neutrality concerns about telecom providers or had antitrust concerns about Microsoft’s bundling of the Internet Explorer web browser with Windows, you should probably have similar concerns about Google, given the way use of its browser is bundled with an EULA covering all of its services. Shouldn’t I be able to discontinue this EULA by getting rid of the browser, and not by terminating all of my accounts with Google? Will there be a lawsuit about unbundling the Google Chrome browser from the rest of its services? UPDATE: Ars Technica reports that Google says this was an error and they will be correcting the license, which was borrowed from other Google services, apparently without careful review. It also notes that since Chrome is distributed under an open license, users can download the source code and compile it themselves without being bound by the agreement. The major flaw in the 11.1 language is that it gives Google the right to publish content you merely “display” in the browser, even if it’s private content on a local server or restricted content from a secured website. That clearly wasn’t their intent, but that’s an implication of how it was written. ...

P.Z. Myers reports on the behavior of police in Minneapolis, which looks similar to Denver.

One of my prized possessions, now in a box in a closet somewhere, is a T-shirt that says on its front “This T-shirt is a munition.” Underneath it is some machine-readable barcode that encodes the RSA public-key encryption algorithm expressed in Perl. As the seller of the shirt advertised, “it’s machine washable and machine readable." When I bought and regularly wore that shirt, taking it out of the country was a crime punishable by up to a $1 million fine and 10 years in federal prison. This is because U.S. rules under the International Traffic in Arms Regulation (ITAR), then enforced by the Department of Commerce, ruled that strong encryption qualified as a munition subject to export controls and requiring a special license for export. After the Dan Bernstein case was decided in 1996, computer source code printed in a book (human readable format) was not subject to export controls, but computer source code in a machine readable format, such as on my shirt, still was. So I could wear my other T-shirt with RSA Perl code on it, which had a program in the shape of a dolphin, out of the country, but not the machine readable “This T-shirt is a munition” shirt. The implication was that you could take a copy of Bruce Schneier’s Applied Cryptography out of the country without an export license, but not a disk containing the very same code fragments printed in the book. This website authored by Adam Back, written at the time, proposed some possible motives for government restrictions on cryptography. What the ITAR regulations on cryptography did for Internet software development was prohibit web browsers and server software from implementing the strong encryption necessary to protect electronic commerce from being exported from the United States. The result was that this development work simply occurred offshore. There were no barriers to importation of the software into the U.S., only to export it out. So the software was developed and sold by companies in places like Canada, Russia, and Estonia, which had no such inane restrictions. Finally, in 1999, the U.S. wised up and relaxed the ITAR restrictions on encryption, allowing export without a license to most countries (the exceptions being countries with links to state-sponsored terrorism). But ITAR is still around, and still having the unintended effect of pushing business out of the United States. The current victim is commercial satellite production. In 1999, ITAR authority over satellite technology export was shifted from the Department of Commerce to the Department of State, and since that time the U.S. share of commercial satellite manufacturing has dropped from 83% to 50%. The company Alcatel Alenia Space, now known as Thales Alenia, took steps in the late nineties to eliminate all U.S.-manufactured components from its satellites, with the result that it has subsequently doubled its market share to over 20%. The European Space Agency, Canada’s Telesat, and the French company EADS Sodern, that makes satellite control and positioning systems, have all been phasing out their use of U.S.-supplied components. They’ve done this because dealing with U.S. vendors increases costs (due to regulatory compliance costs) and causes unpredictable delays in the supply of parts. Nevada’s Bigelow Aerospace delivered an aluminum satellite stand to Russia in 2006, which Robert Bigelow described as “indistinguishable from a common coffee table.” But because it’s associated with a satellite and officially part of a satellite assembly, it is covered by ITAR and had to be guarded by two security guards at all times. Even commodity items like screws and wiring, when part of a satellite, are covered by ITAR regulations. The purpose of ITAR is to prevent key U.S. technologies with military applications from being leaked out to other countries that might be hostile to the U.S. But the effect of its overly broad application has been to shift the development of that technology to other countries and reduce the ability of U.S. companies to compete in the commercial satellite business. Congress should look to reform ITAR–when export controls are so badly broken as to have nearly the opposite of the intended effect, they clearly need to be relaxed. (Satellite and ITAR info via “Earthbound,” The Economist, August 23, 2008, pp. 66-67.) ...