U.S. Wants to Make It Easier to Wiretap the Internet - NYTimes.com

U.S. Wants to Make It Easier to Wiretap the Internet - NYTimes.com

WASHINGTON — Federal law enforcement and national security officials are preparing to seek sweeping new regulations for the Internet, arguing that their ability to wiretap criminal and terrorism suspects is “going dark” as people increasingly communicate online instead of by telephone.

Essentially, officials want Congress to require all services that enable communications — including encrypted e-mail transmitters like BlackBerry, social networking Web sites like Facebook and software that allows direct “peer to peer” messaging like Skype — to be technically capable of complying if served with a wiretap order. The mandate would include being able to intercept and unscramble encrypted messages.

The bill, which the Obama administration plans to submit to lawmakers next year, raises fresh questions about how to balance security needs with protecting privacy and fostering innovation. And because security services around the world face the same problem, it could set an example that is copied globally.

James X. Dempsey, vice president of the Center for Democracy and Technology, an Internet policy group, said the proposal had “huge implications” and challenged “fundamental elements of the Internet revolution” — including its decentralized design.

“They are really asking for the authority to redesign services that take advantage of the unique, and now pervasive, architecture of the Internet,” he said. “They basically want to turn back the clock and make Internet services function the way that the telephone system used to function.”

But law enforcement officials contend that imposing such a mandate is reasonable and necessary to prevent the erosion of their investigative powers.

“We’re talking about lawfully authorized intercepts,” said Valerie E. Caproni, general counsel for the Federal Bureau of Investigation. “We’re not talking expanding authority. We’re talking about preserving our ability to execute our existing authority in order to protect the public safety and national security.”

Investigators have been concerned for years that changing communications technology could damage their ability to conduct surveillance. In recent months, officials from the F.B.I., the Justice Department, the National Security Agency, the White House and other agencies have been meeting to develop a proposed solution.

There is not yet agreement on important elements, like how to word statutory language defining who counts as a communications service provider, according to several officials familiar with the deliberations.

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But they want it to apply broadly, including to companies that operate from servers abroad, like Research in Motion, the Canadian maker of BlackBerry devices. In recent months, that company has come into conflict with the governments of Dubai and India over their inability to conduct surveillance of messages sent via its encrypted service.

In the United States, phone and broadband networks are already required to have interception capabilities, under a 1994 law called the Communications Assistance to Law Enforcement Act. It aimed to ensure that government surveillance abilities would remain intact during the evolution from a copper-wire phone system to digital networks and cellphones.

Often, investigators can intercept communications at a switch operated by the network company. But sometimes — like when the target uses a service that encrypts messages between his computer and its servers — they must instead serve the order on a service provider to get unscrambled versions.

Like phone companies, communication service providers are subject to wiretap orders. But the 1994 law does not apply to them. While some maintain interception capacities, others wait until they are served with orders to try to develop them.

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Voters Moving to Oust Judges Over Decisions - NYTimes.com

Voters Moving to Oust Judges Over Decisions - NYTimes.com

DES MOINES — After the State Supreme Court here stunned the nation by making this the first state in the heartland to allow same-sex marriage, Iowa braced for its sleepy judicial elections to turn into referendums on gay marriage.

The three Supreme Court justices on the ballot this year are indeed the targets of a well-financed campaign to oust them. But the effort has less to do with undoing same-sex marriage — which will remain even if the judges do not — than sending a broader message far beyond this state’s borders: voters can remove judges whose opinions they dislike.

Around the country, judicial elections that were designed to be as apolitical as possible are suddenly as contentious as any another race.

In Kansas, anti-abortion activists are seeking to recall a justice. In Illinois, business interests are campaigning against the chief justice after a case that removed a cap on malpractice liability, prompting him to run a television ad that opens with the declaration, “I am not a politician.” And a conservative group called Clear the Bench Colorado is citing a host of decisions in seeking to oust the full slate of justices on the ballot there, urging voters, “Be a citizen, not a subject.”

The merit selection system, which is used to pick supreme court justices in 16 states, including Colorado, Iowa and Kansas, was established to reduce politics’ influence on the composition of the judiciary, in part by avoiding the expensive and bitter campaigns seen in states where two candidates compete. (For each vacant post in Iowa, a committee nominates three candidates, one of whom is named by the governor. Judges stand unopposed for retention after their first year and then every eight years.)

“The system was not designed so that people could reject one vote or one case,” said Rachel P. Caufield, a Drake University professor who studies judicial selection. “It was designed so that people could get rid of unfit judges. It was meant as an extreme measure.” She added, “The system has worked well — until now.”

Candidate spending for competitive state supreme court races nationwide increased to more than $200 million over the last decade — more than double the figure for the previous decade — but just $2 million of that was spent in states that used merit selection, according to a recently released report on spending in judicial elections.

Because of the contests being waged from Colorado to Illinois, the amount of money spent on retention elections this year is likely to approach or surpass the figure for the entire previous decade, said Adam Skaggs, a lawyer with the Brennan Center for Justice at the New York University Law School and one of the co-authors of the report. “These cases suggest that the same type of arms-race spending in other contested elections is now beginning to impact previously quiet judicial elections,” Mr. Skaggs said. “These retention elections were sort of the last frontier that was free from this highly political, very expensive campaigning in the judiciary.”

Not that organized campaigns to remove judges through retention elections are without precedent. In 1986, Rose E. Bird, the chief justice of the California Supreme Court, was voted out along with two other justices after a contentious campaign that focused on her opposition to the death penalty. The current chief justice in California, Ronald M. George, who wrote the opinion that briefly legalized same-sex marriage (and later the opinion that upheld the voter-approved ban, Proposition 8), would face a similar campaign but he decided to retire rather than stand for re-election.

In Iowa, the campaign has taken a national flavor with visiting Republican presidential hopefuls endorsing the removal effort and Sandra Day O’Connor, the former United States Supreme Court justice, urging the state to resist the national tug toward partisanship.

A half-century of judicial elections in Iowa could be cumulatively read either as a popular endorsement of a well-functioning judiciary or as a testament to voter apathy. Typically in Iowa, more than a third of people who go to the polls do not even cast votes in the judicial races. No sitting State Supreme Court justice has ever been defeated, and only four lower court judges were removed in nearly 50 years.

Conservatives and liberals believe that insulation from voters has allowed judges to rule independently of popular opinion. That belief is why national organizations have poured money into the ouster campaign in Iowa and why the effort is causing worry among advocates for same-sex marriage and for an independent judiciary. Same-sex marriage has been initially approved in four states by supreme courts and in three (and the District of Columbia) by legislatures.

The John H. Armwood Weekly News Podcast, September 24, 2010

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Elizabeth B. Wydra: Supreme Court Waits in the Wings as Appeals Court Considers the Constitution, Voting Rights, Race and Criminal Justice

Elizabeth B. Wydra: Supreme Court Waits in the Wings as Appeals Court Considers the Constitution, Voting Rights, Race and Criminal Justice

Serious questions about racial discrimination in our criminal justice system, laws that deny the vote to those who have been convicted in this system, and the reach of the Constitution's guarantee of the right to vote free from racial discrimination may soon be heading for the Supreme Court.

Earlier this week, an en banc panel of 11 judges on the 9th Circuit Court of Appeals heard argument in Farrakhan v. Gregoire, a challenge under the Voting Rights Act to Washington State's law denying those who have been convicted of felonies the right to vote. (The Voting Rights Act establishes a nationwide prohibition on voting qualifications that have the result of discriminatorily denying or abridging the right to vote on account of race.) A 3-judge panel of the Court of Appeals, splitting 2-1, ruled in January that Washington's law violated the Voting Rights Act in light of "compelling" evidence of racial discrimination in the State's criminal justice system. As the panel decision explained, in Washington State, "minorities are more likely than whites to be searched, arrested, detained, and ultimately prosecuted," and, because "some people becom[e] felons not just because they have committed a crime, but because of their race, then that felon status cannot, under section 2 of the [Voting Rights Act], disqualify felons from voting." Unfortunately, the full appeals court subsequently vacated the panel's opinion and ordered the case reheard by an expanded "en banc" panel of 11 judges.

Every other federal court of appeals to consider the matter--the 9th Circuit in Farrakhan will be the third circuit to consider the issue en banc--has held that plaintiffs may not challenge a felon disenfranchisement statute under the Voting Rights Act. In one of these cases, Simmons v. Galvin, the Supreme Court invited the Solicitor General to express the views of the United States on whether the Court should agree to hear the case in order to resolve the question. The Acting Solicitor General suggested that the Court should not take Simmons, for several reasons--one of which was because the Supreme Court would have the chance to take up the issue of whether laws disenfranchising incarcerated felons can violate the Voting Rights Act in Farrakhan, which the SG apparently thinks is a better case for review because of its "more developed record." Veteran court-watcher Linda Greenhouse agrees, suggesting that, rather than take Simmons, "[t]he justices may prefer to wait to see what the Ninth Circuit does with [Farrakhan]."

We will have to wait for the en banc panel's ruling to know for certain what the 9th Circuit will do with Farrakhan. The judges certainly did not tip their hands at the hearing (and the ideological make-up of the judges on the panel would suggest that there is no obvious majority one way or the other). But Tuesday's wide-ranging and interesting argument did yield some clues as to what is on the judges' minds.

First, given one judge's comment at the hearing yesterday, the en banc panel is clearly aware that the Supreme Court could be "waiting" for the 9th Circuit to rule before acting on the Simmons case.

Second--and perhaps because the judges feel the eyes of the Justices upon them--the 9th Circuit is clearly interested in the major constitutional question in this case: whether the Constitution gives Congress broad power to proscribe racial discrimination in voting, including felon disenfranchisement laws that operate in tandem with racial discrimination in the criminal justice system to deny the vote to African Americans. Seizing on the fact that Section 2 of the 14th Amendment recognizes the authority of states to bar criminals from voting, both the 2nd Circuit and the 11th Circuit have rejected Voting Rights Act challenges to felon disenfranchisement laws, emphasizing constitutional doubts about Congress's power under the 15th Amendment to apply the Act to such statutes. In an earlier stage of the Farrakhan litigation, Chief Judge Kozinski, speaking for 7 judges of the 9th Circuit, raised similar arguments in a dissent from the court's earlier refusal to hear the case en banc. Several questions were asked at Tuesday's hearing about the relationship between the 14th Amendment, which allows for states to disenfranchise certain voters, and the 15th Amendment, which guarantees the right to vote free from racial discrimination. Constitutional Accountability Center filed a brief in the case, available here, answering this central constitutional question, and CAC's arguments were echoed at the hearing in some of the judges' questions and the responses given by counsel for the plaintiffs.

As explained in the brief, Section 2 of the 14th Amendment was not about state felon disenfranchisement laws at all, but rather how to apportion representatives for Congress in light of the fact that the newly freed slaves were now citizens but were still denied the right to vote by southern states. Section 2 provided that apportionment of members of Congress would be determined by the numbers of persons residing in the state, but that any state that disenfranchised male citizens over the age of 21 would lose a proportionate percentage of its congressional representation; in other words, if states did not give freedmen the right to vote, the states' representation in Congress would be reduced. However, this "reduction" penalty did not apply to states that disenfranchised those who participated in rebellion, or other crimes. This language appears to support the idea that the 14th Amendment, by its text, condones felon disenfranchisement, even if it discriminates against citizens based on race.

But Section 2, to the extent it allowed racial discrimination in voting so long as states were willing to pay the penalty of reduced representation, was superseded when the American people ratified the 15th Amendment. The 15th Amendment plainly prohibited racial discrimination in voting, and gave Congress broad authority to enforce this new constitutional command. Far from affirming that racially discriminatory felon disenfranchisement laws could survive after the 15th Amendment, the Amendment's framers specifically declined to carve out an exception for criminal disenfranchisement laws similar to that found in Section 2 of the 14th Amendment. Accordingly, it is entirely within Congress's 15th Amendment power to enact a statute such as the Voting Rights Act that seeks to root out disenfranchisement laws that transfer racial discrimination from the criminal justice system into the context of voting.

Tuesday's hearing in Farrakhan demonstrated the depth of the problem of discriminatory felon disenfranchisement laws. As Ryan Haygood from the NAACP LDF, arguing for the plaintiffs, noted at the conclusion of the argument, African Americans make up 23% of Washington State's prison inmates (but just 3.4 percent of the State's population), with prosecutors asking for 50% tougher sentences for black defendants than they do for white defendants. This means that nearly one-quarter of African American men in Washington State do not have the right to vote because of a criminal justice system that Washington conceded is racially discriminatory.

The problem is not limited to Washington State. According to an analysis by the Sentencing Project, felon disenfranchisement laws have taken the right to vote away from 20% of African Americans in Virginia, compared with a 6.8% disenfranchisement rate for all Virginia residents. In Texas, the disenfranchisement rate of African Americans is 9.3% compared with 3.3% for all Texans. In New York, 80% of the disenfranchised are black or Hispanic. Across the nation, an estimated 1 in 7 black men has lost the right to vote. This is a problem of enormous magnitude for our democracy and our communities.

Fortunately, the Constitution and the Voting Rights Act give Americans some legal tools to address this crisis. Let's hope that the 9th Circuit gets it right in Farrakhan v. Gregoire. And if it does, let's hope that the U.S. Supreme Court is waiting for Farrakhan in order to uphold the text and history of the Constitution and the promise of the Voting Rights Act, and not so it can set our country back in our struggle for a free, equal, participatory republic.

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Activists upset with Facebook - POLITICO.com

Activists upset with Facebook - POLITICO.com

Grass-roots activists organizing boycotts against large corporations like Target stores and BP now find themselves directing some of their ire at another corporate monolith: Facebook.

The boycotters turned to the popular social media site to spread word about their pressure campaigns and keep participants up to date on the latest developments, but those efforts became much more difficult last week when Facebook disabled key features on the boycott pages.

As the number of Facebook members signed up for the “Boycott Target Until They Cease Funding Anti-Gay Politics” page neared 78,000 in recent days, Facebook personnel locked down portions of the page — banning new discussion threads, preventing members from posting videos and standard Web links to other sites and barring the page’s administrator from sending updates to those who signed up for the boycott.

“It slices the vocal cords,” complained Jeffrey Henson, who ran the Facebook page, calling for a boycott of Target over its $150,000 donation to a group supporting a candidate some view as hostile to the gay community, Minnesota gubernatorial candidate Tom Emmer. “The page is now outraged” over the website’s action, Henson added.

Participants in the boycotts complain Facebook’s actions have created an uneven playing field in which ad hoc citizens’ groups face hurdles to online organizing — obstacles that corporations using social media have little trouble surmounting.

“Facebook is interfering with the function of a page dedicated to individuals organizing in response to corporate action to which they object,” said Nicholas Lefevre, a promoter of the Target boycott. “With the limited avenues for such expression and organization and the importance of the Internet to that ability, anything that threatens that expression is dangerous.”

Another Facebook page “liked” by even more people — a boycott of petroleum giant BP that attracted more than 847,000 fans — was also hit by a similar clampdown last week. Those who use the BP page to communicate about the gulf spill reacted angrily.

“It all smells fishier than the gulf to me,” said one comment on the page from a member called “Triple Bottomline.”

Organizers of the Target and BP boycotts quickly started new pages, but their followers have been slow to locate and join the new pages. By Friday, only 1,450 members had signed up for the new page from BP boycott organizer Lee Perkins and 2,507 had signed up for a new Target boycott page.

In response to a query from POLITICO, Facebook said the earlier pages were restricted because they ran afoul of the social media site’s terms of service, limiting so-called pages to individuals and entities that have some real structure in the bricks-and-mortar world.

“Facebook Pages enable public figures, organizations, businesses, and brands to share information, interact with interested people, and maintain an engaging presence on Facebook,” said a Facebook spokesman, who asked not to be named. “They're … optimized for official entities’ needs to communicate, distribute content, engage people and capture new audiences. To protect people from spam and other unwanted content, we restrict Pages that represent ideas or positions — rather than discrete entities — from publishing stories to people's News Feeds.”

“This policy is designed to ensure Facebook remains a safe, secure and trusted environment for the people who use it,” the spokesman said.

The written guidance published on the Facebook site is somewhat vague about who can sponsor a page. The official policy says pages “may only be used to promote a business or other commercial, political, or charitable organization or endeavor (including nonprofit organizations, political campaigns, bands, and celebrities).”

Officials from Target and BP told POLITICO they made no requests to Facebook to act against the boycott pages.

Henson said he got a notice from Facebook about a month ago that he needed to “authenticate” his page. He said he tried to answer every question the site asked.

“I never heard back. Next thing I know: I’m locked out of the page,” Henson said. “I’m hoping they do the right thing and unlock it.”

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John H. Armwood Weekly News Podcast September 17, 2010

This podcast is for the week ending Friday September 17, 2010.  The Archive of my previous News Podcasts is found here

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Zevo 3 | Skechers | Nickelodeon Skechers | Mediaite

Zevo 3 | Skechers | Nickelodeon Skechers | Mediaite

The Boston activist group Campaign for a Commercial Free Childhood has filed a petition with the FCC to block the upcoming Nickelodeon cartoon Zevo-3 which stars characters from ads for Skechers shoes and is being developed by Skechers Entertainment (!). The group fears that this show will pave the way for cartoons starring the likes of Ronald McDonald and that children’s entertainment will become inundated with ads. We here at Mediaite fear that any cartoon that’s basically a cartoon will probably just lead to a crappy Michael Bay movie 20 years from now. Clearly, prevention is the key.

The series, which is about “three teenage, super-powered heroes — tasked to save New Eden City from evil monsters,” features popular characters from a series of commercials as well as a line of comic books that are included with the purchase of Skechers shoes. The CCFC is concerned that the program, set to debut in October, will essentially be an extra-long commercial for the shoe line. Perhaps they got this idea from the fact that trailers for the show are stored on the official “SKECHERScommercials” YouTube page.

John H. Armwood Weekly News Podcast September 10, 2010

This podcast is for the week ending Friday September 10, 2010.  The Archive of my previous News Podcasts is found here

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UPDATED: DGA files Ohio elections complaint against Fox News (The Daily Briefing)

UPDATED: DGA files Ohio elections complaint against Fox News (The Daily Briefing): "The Democratic Governors Association has filed a complaint with the Ohio Elections Commission against Fox News, saying former Fox News personality and GOP gubernatorial candidate John Kasich improperly benefited from an Aug. 18 appearance on Fox.
Fox News improperly ran Kasich's campaign Web address at the bottom of the screen for about 1 minute and 30 seconds during Kasich's appearance on the Bill O'Reilly show, an illegal in-kind contribution, the complaint says.
The compaint also says Kasich raised more than $21,000 from the appearance, citing a speech that Kasich made in Cincinnati on Aug. 21, where he reportedly said, 'The other night, I was on a show with a man who always gives you the last word, Bill O'Reilly. And I said, if you want to help my campaign, our campaign, and you have any extra nickels or pennies, send them to us in the next 21 hours, we received over $21,000.'
The complaint cited two apparent violations of Ohio law: A prohibited in-kind contribution in the form of free political advertising and failure to include a proper disclaimer for the political advertising. You can read the complaint here."
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Intellectual property rights protection improving in China - People's Daily Online

Intellectual property rights protection improving in China - People's Daily Online

China's intellectual property rights protection system is improving thanks to a cooperative project between China and the European Union, senior officials said.

At an event at the Belgium-EU Pavilion in the Expo Garden on Saturday, Benot Battistelli, president of the European Patent Office (EPO), said China has now become one of the world's most important countries in filing for patents among non-EPO entities.

Statistics from the EPO show that Chinese companies have increased their share of European patent applications filed with the EPO from 163 in 2000 to 1,621 in 2009.

The progress is partly due to cooperation over intellectual property rights between the State Intellectual Property Office of China (SIPO) and the EPO, Battistelli said.

"Cooperation between the EPO and the SIPO has been pivotal in the creation of a modern system of intellectual property rights protection in China and has also paved the way for larger intellectual property rights projects in the context of the EU-China cooperative programs," Battistelli said.

The project, coded IPR2, focuses on strengthening the enforcement of intellectual property rights by targeting the reliability, efficiency and accessibility of the intellectual property protection system in China.

As China becomes more reliant on innovation and less on production, the importance of intellectual property rights will continue to rise. The IPR2 project will enable China to set up and manage a modern and efficient system for the legal protection of technical inventions, he said.

The joint work plan for 2011 was announced at the pavilion on Saturday to commemorate 25 years of cooperation.

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Art Brodsky: There Is Some Leadership at the FCC

Art Brodsky: There Is Some Leadership at the FCC

Federal Communications Commissioner Michael Copps has managed the art of saying much in a few words. His latest salvo came in a 245-word letter to the editor in the Washington Post, in which he not only savaged yet another misbegotten Washington Post editorial about Internet policy, but also took on the Verizon-Google joint policy "recommendation" and then noted the cruel reality of the agency to which he has devoted almost nine years of his professional career.

He, and others, recognize that this is a unique time in the history of the FCC, and perhaps of regulation and politics. It happens from time to time in Congress that a legislator will vote against a bill that he or she has introduced, usually after an amendment has been added that drastically changes the bill, or in the case of some shift in the political dynamic.

Today's situation is much different. It is normal for an FCC chairman to have to work from time to time, sometimes for tedious negotiations and edits with fellow commissioners, to gain a majority vote for an item the chairman wants. Now, however, two FCC commissioners of the chairman's party are ready, willing and able to vote to approve an item proposed by the FCC Chairman, who is, in essence, his own swing vote.

But Copps keeps pushing, the sign of a leader who knows his policies and won't back down. The Post's editorial endorsing the Verizon-Google deal "wrongly stated that a court decided the Federal Communications Commission has no authority over Internet service providers," Copps wrote, while correctly saying that the April 6 court decision hinged on which section of the communications law were involved.

His conclusions in the letter were exceptionally strong:

The Verizon-Google plan that the Post endorsed creates a two-tiered Internet at the expense of the open Internet we now have, almost completely excludes wireless and transforms the FCC from what is supposed to be a consumer protection agency into an agent of big business. I thought we'd had enough of that. To expect big telecom and cable duopolies to protect consumers while a toothless agency stands quietly by is to expect what never was nor will be.

It takes a lot of guts to call your own agency "toothless," but Copps has never lacked for guts, nor for leadership. His professional lineage comes through former Senate Commerce Committee Chairman Ernest "Fritz" Hollings of South Carolina, a crafty legislator who also was known for sticking to his guns.

In contrast to the current situation at the FCC, the Canadian Radio-Television and Telecommunications Commission (CRTC) has been moving ahead to help independent Internet Service Providers (ISPs) gain some access to network services.

In their order of Aug. 30, the CRTC gave ISPs more access to services than U.S.-based ISPs are able to get, thanks to years of FCC decisions aimed at shutting down those would-be competitors that don't have their own networks -- which includes most of them.

The CRTC order at the same time added a 10-percent markup to the rates to compensate the telephone and cable companies for their troubles. Unlike U.S. regulators, some of whom believe anything less than total control of networks by the telephone and cable companies will result in a financial disaster of epic proportions, the Canadian regulators were relatively sanguine about the wholesale access at guaranteed speeds, with the additional 10 percent taking care of any problems for the big telephone companies (ILECs -- incumbent local exchange carriers).

Given the adjustment to the ILECs' wholesale service rates for new higher speed service options, the Commission considers that a speed-matching requirement would not result in an undue disincentive for ILECs to continue to invest in fibre-to-the-node facilities. It also considers that, in light of its determinations in this decision, such a requirement would not unduly impair the ILECs' abilities to offer new converged services such as IPTV (internet protocol TV).

As noteworthy as the order is, and the order shows how far ahead of the U.S. the Canadians are on competition, the separate statement of CRTC Commissioner Timothy Denton is even more enlightening.

Denton is a conservative who formerly represented ISPs before being appointed to the Commission on August 1, 2008. Remarkably, he was an attorney representing the Canadian Association of Internet Providers earlier in his career. In his dissent, Denton wrote eloquently about how the decision did not go far enough. Denton wrote that the ruling "neither eliminates them (ISPs) nor allows them the scope to compete effectively." He would have allowed ISPs more control over the services in order to encourage innovations that come from smaller companies. Denton wrote:

Networks are not of the same order of thing as a metal-stamping business. They are affected with the public interest, which is merely to say that the reasons why they are subject to a measure of regulation under the Telecommunications Act are valid.

The Commission does not believe that innovation occurs only at the edges of the network. The right of carriers to innovate in network architectures is absolute, subject to the normal policy constraints of non-discrimination and non-self-preference. The question remains whether innovation from the edge will ever be allowed again, after the burst of innovation which accompanied the introduction of the Internet.

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