National Sovereignty and Free Expression

Cory Doctorow's latest LOCUS column explores the tension between the rights of nations to "establish the rule of law" and individuals' rights to freedom of expression.

Hard Cases, Bad Law

Some nations use the power of their sovereignty to protect individual rights, while some do the opposite. The internet comes into the discussion because it "crosses international borders." Currently the United Nations is working on a Cybercrime Treaty, intended to prevent "ransomware attacks and other serious crimes." The problem is that the treaty will leave it up to each country to define "cybercrime" within its borders. A dictatorship might well define it as any public criticism of the regime. Or, for example, weaponize it against a dating site that permits same-sex matches.

The essay also discusses "data localization" laws, enacted by the EU member nations and some other European countries. Beneficial effects include preventing data about internet users within these countries from being accessed by the NSA's global surveillance. A less benign provision, however, "allows sovereign nations to access and use the data stored within their borders," a power obviously vulnerable to abuse by countries such as Russia.

Encryption presents another dilemma rooted in the clash between sovereignty and individual rights. Governments would like to ban highly effective "working encryption," at least to the extent of mandating a back-door feature for investigation of criminal activity. The trouble is that it's impossible to create such encryption to allow action prosecution of criminals while still protecting the data of legitimate users. Laying out the procedures that would be required to implement the kind of restrictions authorities might like, Doctorow concludes "the collateral damage to human rights from this kind of ban are gigantic."

The essay goes into considerable detail about these and other related issues of interest to anyone devoted to freedom of speech. Conclusion -- in irreconcilable clashes between national sovereignty and human rights, the latter should rule, and "we can recognize the legitimate exercise of sovereignty without using that as a pretense to ignore when sovereign power is used to undermine free expression, especially when that use is likely to kick off a cascade of ever-more-extreme measures that are progressively worse for free expression."

Margaret L. Carter

Pease explore love among the monsters at Carter's Crypt.

When the Proper Amount of Something Is Zero

Cory Doctorow on DRM, conflicts of interest, "bricking," the undermining of consumer privacy, collection of surveillance data, identity theft, and other abuses of consumers:

Thinking the Unthinkable

As one example of zero tolerance, he proposes, "We should order every data-broker, every tech giant, every consumer electronics company and app vendor to delete all their surveillance data." Not likely to happen, though, is it?

Concerning DRM, he half-seriously suggests products infested with it should be required to carry a warning that their advertised features are subject to "revocation without notice." When DRM began to become widespread, he observed that it "didn't just restrict how you used a gadget today, it provided a facility for nonconsensually, irreversibly field-updating that gadget to add new restrictions tomorrow." Also, "This device and devices like it are typically used to charge you for things you used to get for free."

I don't have much to say about this article aside from a general reaction of "good grief!" I'm opposed to DRM on e-books and grateful my publishers don't include it. From what I've read, any halfway competent hacker can disable that feature, which therefore just inconveniences legitimate readers. I already knew we don't literally buy software products such as word processing programs but only "license" them. I knew electronic files of music or visual media can be deleted from the purchaser's access at the whim of the seller, which is one reason I always buy such products on CD or DVD if possible. (I "bought" the live-action LADY AND THE TRAMP from Disney as a streaming movie because it wasn't available in tangible form; I'm still waiting for them to release a DVD so I can own the film permanently instead of provisionally.) I knew tech companies could "brick" gadgets such as phones or tablets, i.e., remotely render them inoperable. However, I didn't know powered medical devices such as wheelchairs and exoskeletons were vulnerable to the same abuse.

While I agree with most of Doctorow's rant, I'm not optimistic about solutions. The convenience of these kinds of technology would be too painful to give up, and the companies that produce it have probably grown too powerful to rein in effectively. Doctorow mentions the example of cars in the pre-seatbelt era, when the sensible rule would have been "don't buy a car." But how practical would that have been for most Americans? Must we simply fall back on "Caveat Emptor" (as an anti-regulation acquaintance of mine seriously declared way back in the late 1960s)? No wonder Doctorow's title includes the word "unthinkable."

Margaret L. Carter

Please explore love among the monsters at Carter's Crypt.

When Do Conspiracy Theorists Make Sense?

Cory Doctorow's column in the May issue of LOCUS discusses what we'd probably think of as paranoid conspiracy theorists, vehemently protesting imaginary global plots against our lives and liberties, who in Britain are often informally labeled "swivel-eyed loons."

The Swivel-Eyed Loons Have a Point

Of course, we do have to distinguish the paranoid looniness from valid concerns. As he says, we all want to "save the children." Most of us, however, want to save them from "real threats who never seem to face justice," while the swivel-eyed loons obsess about "imaginary threats," e.g., "adrenochrome-guzzling Satanists."

Some issues about which he suggests they have valid points:

Automated license-plate recorders, presently used in London, really can constitute "a form of pervasive location-tracking surveillance." That kind of power has been used in the past to target "disfavored minorities" and organizations regarded as suspicious.

While “'Climate lockdowns' are a product of a conspiracist’s fevered imagination," it's nevertheless true that COVID restrictions have sometimes served as a pretext "to control everyday people while rich people swanned around having a lovely time." The powerful were happy to promulgate regulations they didn't consider to apply to themselves.

The "post-ownership society" fearfully anticipated by some conspiracists has already begun to infiltrate the economy. Our Kindle books, music files, and other software don't really belong to us; we lease them from companies that can delete them at will.

What about the futuristic promise of a cashless society, when institutions such as credit card companies will be nearly all-powerful gatekeepers? "Access to financial services is a primary means of extralegal control over whole sectors of the economy."

Doctorow's article offers several other alarming examples.

However, he exaggerates about the demise of DVDs. Yes, we can still buy movies and TV programs (and music) in physical media that we permanently own; they aren't likely to disappear anytime soon. (The choice of renting DVDs from Netflix will go away later this year, though. Sigh.)

"We live in a fraught and perilous time," he reminds us, "and powerful people really do want to capitalize on this situation to enrich themselves at our expense." How can we enjoy the benefits of technologies such as those mentioned in his essay while avoiding their threats to our privacy and autonomy?

Margaret L. Carter

Carter's Crypt

APP Your Peril

Can an app wreck your life?

Apparently, so. From Electronic Freedom Foundation to RedState, dark cautionary tales abound. At bottom, it is data brokers to blame, and you really cannot stop them. Even if you pay them to remove your info, it seems to get re-upped with regularity.

You can be wrongly tagged as a terrorist, and you have little recourse, as Cindy Cohn explains a Supreme Court ruling.

https://www.eff.org/deeplinks/2021/06/supreme-court-says-you-cant-sue-corporation-wrongly-marked-you-terrorist

You can gaily go around town browsing online for so-called sinners to seek out and perchance to save, and be judged.

https://redstate.com/streiff/2021/07/23/powerful-catholic-priest-outed-by-his-grindr-app-data-may-be-an-omen-of-more-to-come-n415535?utm_source=rsmorningbriefing&utm_medium=email&utm_campaign=nl&bcid=6fed806fc43048eb10861e86d69f2ada

Time was, if you had a Ring in your door, you could be subpoenaed by the police. Now, at least, the use of your app to surveille your street may be voluntary... if you use another Amazon app. Matthew Guariglia has it covered.

https://www.eff.org/deeplinks/2021/06/ring-changed-how-police-request-door-camera-footage-what-it-means-and-doesnt-mean

Matthew Guariglia assembled a horrifying graphic and article to demonstrate the thirteen wonderfully overlapping ways that unlucky urban citizens are watched by Big Brother. It really is a must-read compilation, and --even better-- it includes some suggestions on how to fight back.

https://www.eff.org/deeplinks/2021/06/graphic-overlapping-infrastructure-urban-surveillance-and-how-fix-it

Legal bloggers Carrie Dettmer Slye and Julie Singer Brady for Baker & Hostetler LLP discuss (doubtfully) whether all this tracking and spying and brokering of data may meet the standards necessary for class action lawsuits.

https://www.bakerlaw.com/alerts/panning-for-litigation-gold-in-1s-and-0s

Pandora's box was filled with apps, it seems.

All the best,

Rowena Cherry 

SPACE SNARK™ http://www.spacesnark.com/  http://www.rowenacherry.com

Digital Feudalism

In Cory Doctorow's early January LOCUS column, he discusses in considerable technical depth the surveillance and privacy (or anti-privacy) policies of big tech companies, mainly Apple but also others such as Facebook and Google:

Neofeudalism and the Digital Manor

He draws an extended analogy with the medieval feudal system. Private citizens besieged by cyberworld bandits have no practical recourse but to ally themselves with "warlords" who offer protection through powerful security measures unavailable to ordinary users. Behind the nearly impregnable walls constructed by the warlords—Apple, Microsoft, Facebook, Google, etc.—we can consider ourselves fairly safe from encroachment by predators. Safe from everyone, that is, except the warlords themselves.

Doctorow's example of Apple's "feudalistic" practices: "For more than a year, Apple has engaged in a covert, global surveillance of its users through its operating system, which automatically sent information about which apps you were running to Apple, and which gave Apple a remote veto over whether that program would launch when you double-clicked it." The corporation might claim this feature protects users from malicious software, but it doesn't prevent Apple from blocking any software it chooses, whether harmful or beneficial. Furthermore, Apple also locks out programs consumers might use to turn off the surveillance and blocking feature.

The article cites various examples from other major corporations. It also explores entanglement between big tech and government, with the state claiming the right to mine data collected by technology giants. How chilling to contemplate that "the US government viewed the tech companies as host organisms to be parasitized at will, a force that would mobilize market investments to erect a vast, expensive surveillance apparatus that the state could then wield at bargain-basement prices."

If the only thing that stops Apple or any big tech lord of the manor "from blocking you from running legitimate apps – or from gathering information about your movements and social activities – is its goodwill and good judgment," what can we peasants do? Doctorow, of course, has some suggestions, but they're solutions no individual or small group of consumers can implement on our own.

Margaret L. Carter

Carter's Crypt

Taking Names

As long as a former President is deceased, and also his widow (if applicable), the President's name can be trademarked as long as it is not a descriptive trademark.  

The Lanham Act is going to have to be rewritten in the next few years. Why?  Because the pronouns are outdated, as are some of the nouns. A future President might have a widower (rather than a widow).

Legal blogger Dorna Mohaghegh, representing the law firm Frankfurt Kurnit Klein and Selz PC tells the topical trademark and copyright law-related emerging story of conflict between a genuine historical project named after President Lincoln, and what I would call a petard "project" for political fundraising.

Lexology link:
https://www.lexology.com/library/detail.aspx?g=1ad2906f-eed7-42a4-b73a-70a084b0e5e6

IP and Media Law Link: 

https://ipandmedialaw.fkks.com/post/102glx9/dishonest-abe-trademark-battle-erupts-over-the-lincoln-project

For those who may not know, a petard was an unreliable salt petre bomb  (basically a fertilizer bomb) used in the middle ages, most famously mentioned by Shakespeare in the context of army corps of engineers specialists blown sky high while attempting to undermine a beseiged city wall and thus being "hoist by their own petard".  Hamlet Act 3 Scene 4.

It's an interesting analysis of two groups both wanting to trademark "The Lincoln Project", and of some little known trademark trivia. 

For those considering a trademark, the cost of a trademark goes up in January 2021.

As for taking, but perhaps not trademarking, living student athletes' names and more, legal blogger Gregg E. Clifton wrote an interesting opinion for the law firm Jackson Lewis PC.

 

For College and ProSports Law:

https://www.collegeandprosportslaw.com/collegiate-sports/federal-name-image-and-likeness-options-increase-with-new-senate-bill-proposal/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+CollegiateProfessionalSportsLawBlog+%28Collegiate+%26+Professional+Sports+Law+Blog%29

 

Lexology link

https://www.lexology.com/library/detail.aspx?g=3d2f94cf-42ce-4389-a1c7-c1d03147d61c

One of the Heritage/DNA/Ancestry websites may be --and maybe should be-- in copyright-related trouble for monetizing former students' yearbook photos without permission. It is a class action, and likely to be important... because most Americans' photographs are in their old school yearbook, and the photos and comments may not be as amusing if made public today as they might or might not have been at the time.

That long ago time (my opinion) might have been before the internet, when the expectation was that the yearbook would be seen by a very limited number of people, and in the context of the in-jokes of the time. Perhaps "the time" might have been when Monty Python's Flying Circus was hugely popular, and everyone would have understood references to lumberjacks sniffing flowers, dead parrots and more.

The copyright in photographs generally belongs to the photographer, unless the photographs are clearly work for hire, or the copyright is assigned or licensed. The subject of a photograph usually has rights (of Publicity, for instance), unless they waive the rights.

Linda A Goldstein, and Amy Ralph Mudge, blogging for Baker and Hostetler LLP explained in a December 16th blog about the class action suit in California, and why the plaintiffs feel that the site in question were in the wrong to ask users to send in old yearbooks, and to ask those users to claim that they owned the copyright to the yearbooks, or that the yearbooks were not subject to copyright.

Here:
https://www.lexology.com/library/detail.aspx?g=83633085-22f6-40af-99c2-9328d3311066

Or here:

https://e.bakerlaw.com/rv/ff006fb16b2c84389b84cbfd10438ce5462eb14f/p=4755305

 

Anyone who is at all interested in their own privacy should read the complaint, which includes examples of the plaintiffs' yearbook photos, which were allegedly exploited for profit by the defendants.

 

When there is too much surveillance in general in society, and powerful forces in society try to control citizens' thoughts and actions through disinformation, vocabulary manipulation, destroying or rewriting history, intimidation etc, we call it Orwellian. 

 

Hillsdale College published an essay comparing Orwell's dystopian Big Brotherly world with ours.

 

https://imprimis.hillsdale.edu/orwells-1984-today/?utm_campaign=imprimis&utm_medium=email&_hsmi=103982981&_hsenc=p2ANqtz-8Rqxsl2_EZyhORInqVNloCnM8j4uQMmFHHX36wjjt4g5QYbXTtxR6nQM4PU3wF1ij7FQ_9CBFBjZ2mdHrRTlwm2soqPQ&utm_content=103982981&utm_source=hs_email

On a less dark note, the fine copyright enthusiasts of MTP discuss Thom Tillis's thoughts for how the DMCA should be brought up to date to restore incentives for creative artists to... create.

https://musictechpolicy.com/2020/12/22/senthomtillis-releases-discussion-draft-of-dmca-revisions/

All the best, and Happy New Year!

Rowena Cherry 

SPACE SNARK™ http://www.spacesnark.com/ 

Pro-Tech and Anti-Tech

Cory Doctorow's current LOCUS essay is titled "Let's Get Better at Demanding Better from Tech":

Demanding Better from Tech

Doctorow rejects the "anti-tech/pro-tech false dichotomy" in favor of a more nuanced analysis of the issues. As he puts it, there's no getting around the fact that "your future is going to have more technology in it, so the question isn’t, 'Should we use technology?' but rather, 'Which technology should we use?'” Is it possible to enjoy the advantages of high-tech and connectivity without losing our privacy? He urges us to embrace "the ability to separate a technology from its social and economic context," a process science fiction can help with. This article touches on surveillance, privacy, licensing agreements, advertising, the Internet age, market forces, and "neoliberal capitalism." He maintains that we can find ways to benefit from tech without surrendering our individual rights and resigning ourselves to the dominance of corporations that equate to "colony life-forms that use us like gut-flora, maneuvering us to help them thrive and reproduce, jettisoning us or crushing us if we cease to serve their needs."

The dilemma of convenience versus privacy also applies to the practice of tracking through fitness devices, which Rowena discusses in her latest blog, although Doctorow doesn't mention that issue. As for Alexa, I don't use her, but if I did, I would be quite disturbed at the idea of her betraying my trust by ratting on me to higher authority.

Doctorow suggests that "AI-apocalypses"—scenarios in which super-intelligent computers become our "overlords"—remain popular because they "resonate with our current corporate situation." Corporations, however, unlike actual gut-flora, comprise people who, we hope, can be reasoned with. So Doctorow ends with a upbeat message that all isn't necessarily lost, where personal rights and privacy are concerned, and there's hope.

Margaret L. Carter

Carter's Crypt

Bird Brains

Following up last week's post on animal intelligence, I want to suggest that you pick up a copy of the February NATIONAL GEOGRAPHIC. It includes an article titled "Bird Brainiacs." The conventional dismissive reference to "bird brains" has been radically overturned in recent years. Originally, the avian brain, about the size of a nut, was thought to be severely limited by its lack of a neocortex. Now it's been discovered that birds' brains are much more complex than previously assumed, although structured differently from those of mammals. The article refers to the famous gray parrot genius Alex, who demonstrated that parrots can use English words in the appropriate context rather than simply "parroting" human speech. Parrotlets in South America are among the species that have a kind of "language" of their own, assigning "names" to individuals in the flock. Also described are crows that trade gifts with a girl in Seattle. Experiments show that bird pairs can cooperate to solve problems. Some birds fashion tools out of sticks and other objects. They occasionally show evidence of planning ahead, by stashing their manufactured objects for later use. No wonder some biologists call birds "feathered apes."

That birds, with their small bodies and brains, can be so intelligent makes alien creatures such as the treecats in David Weber's Honor Harrington series more believable. Treecats have human-level intelligence despite being about the size of Earth's domestic felines.

Other items of interest in this issue: The cover article reveals how thoroughly high-tech surveillance already pervades our society, explores its future potential, and discusses the positive and negative sides of this phenomenon. A short piece called "The Parent Trap" features highly realistic robotic babies used in high-school sex education classes. Reading about this program reminded me of human-looking sex robots discussed on a talk show I recently caught a few minutes of (on the TV at the blood bank) and the robots already used in elder care in Japan. Concerning the sex androids, naturally my first thought was what would happen if they awoke to sentience and revolted against their condition of, essentially, slavery.

Here's an article about the Japanese caregiving robots in a variety of shapes and sizes:

Robot Caregivers

Happy Candlemas / Imbolc / Groundhog Day! I've had it with winter already; how about you? In some countries, the Christmas season traditionally ended on Candlemas. So I'm perfectly justified in still displaying the wreath on the door. (Actually, I often keep it up almost until Ash Wednesday, but I can't cite a tradition for that.)

Margaret L. Carter

Carter's Crypt

The Musical Trojan Horse

Imagine what would happen if the sound system in Foxborough this evening were to be hacked by hippies, who installed a Spotify "Chill" playlist. 

Imagine if they played beautiful, soothing songs about sunny afternoons, peace, love, wearing summery windflowers in their hair, and being groovy.... instead of belting out warlike anthems about being champions, not taking disrespect, and assisting ones foes to bite the dust.

Would there be fewer penalties and less unnecessary roughness?

Music matters. Music makes a difference. Music can be dangerous. Or not. Perhaps one does not want music in the wrong hands.

Today, I connect three very different dots.

William R. Trotter's brilliant analysis of music and the art of war, which was published in the June 2005 issue of Military History magazine.
http://www.historynet.com/the-music-of-war.htm

The Pierce Brosnan movie I.T., about what happens when one willingly installs an Internet Of Things home with convenient camera surveillance even in the bathroom, then upsets an unstable hacker.
https://www.youtube.com/watch?v=hfnDTvbtDUI

Liz Pelly's warning about Spotify, emotional regulation by algorithm, mood (if not mind) control through music and curated playlists, and a passing mention of "overpriced, fun-sized plastic and metal surveillance machines."
https://thebaffler.com/salvos/the-problem-with-muzak-pelly

If one connects those dots, music could be a Trojan Horse.  Since ancient times --even perhaps before Joshua used exceptionally loud music to demoralize his enemies and destabilize their fortress walls... perhaps by causing liquefaction-- music has been used in warfare.

According to Milutin Srbulov

Ground vibration can be caused by very loud noises, including by musical events, and by people marching or dancing. ... Damages can include excessive building settlement, liquefaction of sandy soils, slope instability, collapse of trenches, excavations, and tunnels, exposure of buried pipelines and other services, cracking.. .

Music has been used by the military to motivate troops, increase aggression, promote the "hive mind", to raise adrenaline and whip up violent emotions.

Marching to the beat of a drum was so prevalent that joining the army was called "following the drum". 

As William R. Trotter explains, there is a musical language of warfare. Machiavelli wrote explicitly about it in his Italian "Art of War" manual. Bugle and trumpet calls communicate distinct commands to cavalry or infantry. Warriors had their national anthems, so that when the forces were out of sight, one could identify friend or foe by what they were singing.

(Trotter tells stories where unscrupulous military commanders gained an unfair advantage over their enemies by singing the wrong song, or playing the other army's trumpet command to retreat. Musical dirty tricks!!)

According to Trotter, Music improves the X Factor.

"In his novel War and Peace, Leo Tolstoy observed that the effectiveness of an army is the product of the mass multiplied by something else; by an unknown ‘X’….the spirit of the army. Throughout history, music has had the effect of raising that unknown ‘X’ by a considerable power."

Did Simon Cowell know that?
(https://en.wikipedia.org/wiki/The_X_Factor )

According to Liz Pelly, music can be sponsored and curated and manipulated for instance to persuade women to buy more exotic brassieres than they need, and playlists can be associated with all manner of product and services marketing... without the consent of the musicians, and perhaps without appropriate compensation.

If there is a playlist for shopping, are there playlists for political causes? What about for rallies, marches, and riots?  Considering the history of music for warfare, is this a good idea?  Should the police on picket lines have playlists?

It seems that music can be weaponized, and can alter moods and behavior. (I suspect, some types of music may be implicated in road rage.) If this is the case, probably an individual tune is harmless, but an extended serious of tunes that are put together for a specific purpose by a commercial or political enterprise might be a Trojan Horse.

One should worry when a government (such as the US Congress with the "Music Modernization Act" ) appears to be inclined to make copyright infringement lawful, or to retroactively absolve copyright infringement for the benefit of music services that produce curated music services.

Richard Bush points out:

"It also seems patently unfair to basically retroactively absolve Spotify of infringement damages, and willful infringement at that, just because a victim has not yet filed a lawsuit."

https://www.digitalmusicnews.com/2018/01/19/spotify-music-modernization-act/

Also

" technology companies are lobbying Congress to create laws to turn the creative community into workers whose own musical creations are not in fact their own."

How is it in the public interest to make music cheap-to-exploit for billionaire internet players and to prevent musicians from opting out of certain political or marketing uses of their creations if they object to those uses?

For more reading on Orwellian goings on to strip control of music from musicians:

https://artistrightswatch.com/2018/01/16/is-it-time-for-the-inspector-general-to-review-the-copyright-offices-administration-of-address-unknown-nois/

https://www.digitalmusicnews.com/2018/01/16/huffington-post-ceo-spotify/
  
https://www.digitalmusicnews.com/2018/01/09/huffington-post-removes-spotify-article/


By the way, in FORCED MATE, my alien ruling class explicitly outlawed music in their societies, except for use for patriotic, feel-good occasions such as royal weddings.


All the best,
Rowena Cherry