The speech is up on iTunesU at the Florida International University College of Law account, or click on the image for alternate link (fixed):
As the Wired blog Game | Life summarizes, the Chairman of Sony’s board of directors blames Anonymous for the hack, pointing to a calling card:
[He] revealed that the hacker left a smug digital calling card on the Sony Online Entertainment servers, which were hacked days after PlayStation Network. The file was called “Anonymous,” and simply read “We Are Legion.”
Anonymous says the calling card may have been planted:
The group is ballsy, but not stupid, it claims. A press release from the group says, “No one who is actually associated with our movement would do something that would prompt a massive law enforcement response.” On the other hand, Anonymous writes, “a group of standard online thieves would have every reason to frame [us] in order to put law enforcement off the track.”
An attack on Sony PlayStation Network servers has resulted in the exposure to hackers of Sony gamers’ “name, address (city, state, zip), country, email address, birthdate, PlayStation Network/Qriocity password and login, and handle/PSN online ID.” Sony believes that it may also be possible that “profile data, including purchase history and billing address (city, state, zip), and your PlayStation Network/Qriocity password security answers may have been obtained.” More than 100 million accounts may have been breached.
A spokesperson for Sony announced that the hackers “used very sophisticated means to access the data, and they used sophisticated means to cover their tracks.”
As Sky News has reported regarding, hacks emanating from Chinese territory and targeting Western firms have grown incredibly common, and appear to constitute a systematic pillaging of non-Chinese firms:
Last year, cyber attacks cost Britain £27bn. The global hub for targeted attacks is China. An estimated 1.6 billion attacks are launched from the country each month.
In 2007, the director of British intelligence warned 300 British businesses that they were victims of cyber-attack emanating from Chinese territory.
Google is the most prominent victim of cyber-attacks launched from China but not known to be sponsored by the Chinese state::
Numerous sites including YouTube, The Guardian, Facebook, Twitter, Blogger and Wikipedia have been blocked, some of them indefinitely. In addition, last June the Chinese government announced that all personal computers sold in China would need to be pre-loaded with software that could be used to censor online content. After a public outcry and pressure from companies, the proposal was later withdrawn.
Most recently, in mid-December, we detected a highly sophisticated and targeted attack on our corporate infrastructure originating from China. What at first appeared to be an isolated security incident–albeit a significant one–turned out upon investigation to be something quite different.
First of all, at least twenty other large companies from a wide range of businesses–including the Internet, finance, technology, media and chemical sectors–were similarly targeted.
Second, we believe that a primary, albeit unsuccessful, goal of the attack was to access Gmail accounts surreptitiously.
Third, we discovered in our investigation that the accounts of dozens of U.S.-, China- and European-based Gmail users who are advocates of human rights in China appear to have been routinely accessed by third parties. I want to make clear that this happened independent of the security breach to Google, most likely via phishing scams or malware placed on the users. computers.
The attack on our corporate infrastructure and the surveillance it uncovered–as well as attempts over the past year to limit free speech on the Web even further–led us to conclude that we were no longer willing to censor our search results in China. This decision was in keeping with our pledge when we launched Google.cn that we would carefully monitor conditions in China, including new laws and other restrictions on our services.
I want to stress that while we know these attacks came from China, we are not prepared to say who carried out these attacks. We do know such attacks are violations of China’s own laws and we would hope that the Chinese authorities will work with US officials to investigate this matter.
Earlier this week we stopped censoring our search services–Google Search, Google News, and Google Images–on Google.cn. Users visiting Google.cn are now being redirected to Google.com.hk, where we are offering uncensored search in simplified Chinese, specifically designed for users in mainland China and delivered via our servers in Hong Kong.
The Hong Kong-based Asia Times reported in 2009 that a suspicious convergence of hacks into Western technology firms and Chinese national security interests had emerged in the investigation into the mysterious Ghostnet network of zombie computers:
The operation, which the investigators named “GhostNet”, used a Trojan hidden in e-mail attachments to compromise a computer’s security and download a piece of malware called gh0st RAT (RAT standing for Remote Access Tool). Gh0stRAT allowed a remote operator both to examine files on the computer and to upload them to a gh0st RAT server. Keystrokes could also be logged – a key hacking tool for acquiring passwords – and, purportedly, the computer’s microphones and webcam could be activated and the audio and video sent to the gh0st RAT server. …
In October 2008, Citizen Lab issued a report revealing that TOM-Skype, a joint venture by Skype and an arm of Hong Kong tycoon Li Ka-shing’s empire offering encrypted voice and text messaging services inside of China, saved copies of text messages on a network of eight servers. …
The TOM-Skype affair highlights the central role played in the battle between the Chinese state and those who wish to navigate the Internet beyond its control by a unique technical feature of Internet communication: 128-bit encryption.
The Sony PlayStation Network also permits communication over the Internet using 128-bit encryption. A coincidence? Maybe.
The Second Circuit has ruled that Amnesty International, Human Rights Watch, the Global Fund for Women, The International Criminal Defence Attorneys Association, SEIU, the Pen America Center, The Nation magazine, and a couple of individuals have standing to assert First Amendment, Fourth Amendment, and Articles I-III of the Constitution violations by the federal government, when engaged in unregulated monitoring of Internet speech. The court concluded, among other things:
[A new law] does not require the government to submit an individualized application to the FISC identifying the particular targets or facilities to be monitored. Instead, the Attorney General (“AG”) and Director of National Intelligence (“DNI”) apply for a mass surveillance authorization by submitting to the FISC a written certification and supporting affidavits attesting generally that “a significant purpose of the acquisition is to obtain foreign intelligence information” and that that information will be obtained “from or with the assistance of an electronic communication service provider.” ….
Here, the fact that the government has authorized the potentially harmful conduct means that the plaintiffs can reasonably assume that government officials will actually engage in that conduct by carrying out the authorized surveillance. It is fanciful, moreover, to question whether the government will ever undertake broad-based surveillance of the type authorized by the statute. The FAA was passed specifically to permit surveillance that was not permitted by FISA but that was believed necessary to protect the national security. See, e.g., 154 Cong. Rec. S227, 227-28 (daily ed. Jan. 24, 9 2008) (statement of Sen. Rockefeller) (explaining “why it is necessary for us to update” FISA); id. at 235 (statement of Sen. Hutchison) (explaining why surveillance authorization procedures must be updated). That both the Executive and the Legislative branches of government believe that the FAA authorizes new types of surveillance, and have justified that new authorization as necessary to protecting the nation against attack, makes it extremely likely that such surveillance will occur….
Journalist Naomi Klein reports on a wide variety of international topics, and in order to do so she communicates with sources abroad, including Mexican individuals regarding military activity in Chiapas, Argentinian advocates for indigenous rights, and indigenous Colombian groups who oppose U.S. trade policies. Likewise, journalist Chris Hedges, whose writing focuses on American and Middle Eastern politics and society, maintains regular contact with academics, journalists, politicians, and activists in places such as Iran, Syria, Libya, Kosovo, Bosnia, and Sudan….
Furthermore, the plaintiffs have good reason to believe that their communications, in particular, will fall within the scope of the broad urveillance that they can assume the government will conduct. The plaintiffs testify that in order to carry out their jobs they must regularly communicate by telephone and e-mail with precisely the sorts of individuals that the government will most likely seek to monitor – i.e., individuals “the U.S. government believes or believed to be associated with terrorist organizations,” “political and human rights activists who oppose governments that are supported economically or militarily by the U.S. government,” and “people located in geographic areas that are a special focus of the U.S. government’s counterterrorism or diplomatic efforts.”
Just as the creation and maintenance of open access to the postal system may have done more for freedom of speech than the Supreme Court for the better part of two centuries, so may free and open broadband networks guarantee liberty of expression when the courts might not be inclined to do so.
Esme Vos of muniwireless.com has been doing fascinating work for the better part of a decade on community-owned and -supported broadband networks. Her site documents the continuing growth of importance of free citywide Wi-Fi:
There are 110 municipalities with citywide WiFi that is open to the public for Internet access. In addition, there are 56 cities that have citywide or near citywide coverage but they use it only for government applications, mostly public safety. Finally there are 84 cities that have large outdoor Wi-Fi hotzones, mostly in downtown areas and parks.
More recently, Esme has linked to a report by newrules.org mapping the widespread use of publicly-supported broadband capacity in the US:
Over 3 million people have access to telecommunications networks whose objective is to maximize value to the community in which they are located rather than to distant stockholders and corporate executives.
We are seeing once again, this time in North Carolina, how the incumbent telecom and cable operators are continuing their battle against the right of the people to create, own and manage their own local broadband networks. What these incumbents want is a monopoly or a duopoly and the ability to extract outrageous monopolistic prices for their services. Therefore it is very important for cities and towns to fight for the freedom to own and operate broadband networks.
As I argued a few years ago, data reviewed by the American Public Power Association indicated that in 2002 the average electric rates paid by users of investor-owned networks were 13 percent higher than those paid by users of public electrical networks. Not only municipal electricity but also municipal water and sewage projects have been shown to be more efficient.
As Franklin Delano Roosevelt maintained, in the case of electrical networks:
“”The very fact that a community can, by vote of the electorate, create a yardstick of its own, will, in most cases, guarantee good service and low rates to its population.”….
Ira Rosofsky details some of the benefits conferred by FDR’s investments in a public option for electricity in the south and southeast:
In a compromise worked out with Wendell Wilkie, then president of the Commonwealth and Southern Company, a major private power utility, the [Tennessee Valley Authority] was allowed to sell electricity in competition to private firms, but not outside of the Tennessee Valley.
And the rest, as they say, is history. The TVA is our largest public power company with 9 million customers. It was an engine of economic development. In its first 20 years, per capita income in its service region rose from 44 percent of the national average to 61 percent….
Despite its success, the TVA remained a target.
At the height of the Cold War, President Eisenhower likened it to “creeping socialism” and said, “I’d like to sell the whole thing.”
Ellen Brown has pointed out that the state-owned Bank of North Dakota has contributed to a better ratio of deposits to loans than in other states where private banks are hoarding public money and refusing to lend it out:
Only one US state actually owns its own bank – North Dakota. As of last spring, North Dakota was also the only US state sporting a budget surplus. It has the lowest unemployment rate in the country and the lowest default rate on loans. North Dakota has effectively escaped the credit crisis.
The Bank of North Dakota (BND) is a major profit generator for the state, returning a 26 percent dividend in 2008. The BND was set up as “North Dakota doing business as the Bank of North Dakota,” making the assets of the state the assets of the bank. The BND also has a captive deposit base. By law, all of North Dakota’s revenues are deposited in the BND. Municipal government and private deposits are also taken. Today, the BND has $4,000 in deposits per capita, and outstanding loans of roughly the same amount.
Writing for Forbes, Anita Raghavan has described how Germany saves its citizens thousands of dollars a year in medical costs, while raising the standard of health care to a degree that they live longer than Americans:
[Germany’s] public insurance system is largely financed by a payroll tax amounting to 14.9% of a person’s salary, with employees picking up 7.9% and employers taking the rest. As for disability, employers pay six weeks’ salary; after that the sickness fund, or nonprofit insurer, pays 80%, subject to a cap, for 18 months. This year the government will kick in an additional $10.3 billion to help cover children, maternity benefits and home help. Unemployment insurance pays the fees for those out of a job. Premiums in the public system are based on income and not an individual’s risk (that is, age and current health). It’s a different story for those with private insurance, where high-risk people pay higher premiums. There are sometimes deductibles in the private system, but public patients have only copays….
As for long delays in treatment, 68% of public and private patients surveyed by the Commonwealth Fund reported waiting less than four weeks to see a specialist, compared with 74% in the U.S. (Sometimes patients with public insurance must wait longer for appointments.) The German system scored high, too, when it came to out-of-pocket expenses: Only 13% of those with a chronic condition reported spending more than $1,000 in the past year, compared with 41% in the U.S.
Don McCanne and others over at Physicians for a National Health Program argue that current proposals to privatize Medicare would massively increase aggregate medical costs, potentially bankrupting millions of people:
House Budget Chair Paul Ryan’s proposal for Medicare has two primary goals. It would end Medicare as a government program and shift it to private insurers, and it would reduce the government’s payments to the program, shifting more of the costs to the Medicare beneficiaries.
This analysis by the Congressional Budget Office demonstrates that not only would the Medicare beneficiaries receive less care and have to pay more for it, but in the first year alone, the total costs would be significantly higher using private plans than it would be using the traditional Medicare program. Medicare is able to provide health care for 11 percent less than the total costs through private insurers.
Frank Pasquale has similarly argued that Medicare keeps medical costs dramatically lower than those charged to uninsured patients:
A comprehensive analysis of data hospitals report to Medicare shows that, on average, hospitals charge uninsured patients two-and-a-half times more than they charge insured patients and three times more than their actual costs. In some states mark-ups average four-fold.
This empirical research confirms what antitrust scholars long suspected: merged hospitals and increasingly powerful single-specialty groups would have a great deal of power to set prices. That’s one reason the “cost shift hydraulic” leaves private insurance payments around 122% of hospital costs, while Medicare pays about 100%.
Even the Founders encountered a faltering market – the one for sailors and seamen – and provided a public option for their care. As Laurence Tribe says:
As early as 1790, Congress penalized ship owners for failing to stock medications their crews might need.
Robyn Blumner and others have illustrated the extent to which the Founders, including Thomas Jefferson, established public hospitals:
In July 1798, as blogger Rick Ungar of Forbes notes, Congress passed “An Act for the Relief of Sick and Disabled Seamen,” which was signed by President John Adams.
The law required privately employed sailors to pay part of their wages toward a government-run health insurance program. The money funded the Marine Hospital Service, a chain of government hospitals that provided health care services for sick or injured sailors.
Washington Post blogger Greg Sargent adds the delicious tidbit that Thomas Jefferson, the anti-federalist and tea party hero, also supported the federal marine hospital system, working to improve it during his presidency.
The program was treating over 50,000 people a year by the late 1800s.
Bloomberg confirms it:
The agreement would include funding for National Public Radio, which Republicans had attempted to end. It also would strip Republican riders that sought to block the Federal Communications Commission’s “net neutrality” Internet rules as well as the Education Department’s efforts to clamp down on for- profit colleges.
From reports of tonight’s budget deal, it sounds like major policy riders like those affecting the EPA’s and FCC’s major initiatives are out, although abortion-related riders are in the deal. Meanwhile the House voted to repeal the FCC’s modest net neutrality rules, endorsed even by AT&T. The arguments invoked in favor of repeal seemed to believe that the Internet industry and the World Wide Web were born and commercialized in a deregulated environment interrupted only by the FCC in 2008:
In arguing their case, the Republicans ignored a crucial part of the Internet’s history. They frequently quoted a Democratic FCC Chairman, William Kennard, from 1999, in calling for a deregulatory approach to the then-evolving Internet. What the legislators, including Rep. Marsha Blackburn (R-TN), overlooked was that in 1999, access to the online world was provided largely by telephone companies, which were regulated as common carriers.
If a consumer back then had wanted to dial into AOL, Prodigy or CompuServe, the big online services of that era (not today’s AOL), no telephone company could have legally redirected the call to their own service. It would have been a violation of the Communications Act.
Of course, some of those voting for unrestrained censorship of the Web by local broadband monopolies know exactly what they are voting for, insofar as there is a convergence of interests in the commercial and political sectors:
[A 2005 broadband] transaction would give Comcast and TimeWarner unprecedented power to influence local or national politics. Comcast’s recent actions blocking a political email, whether by accident or design, should send a clarion call to the Commission that it cannot allow Applicants to exercise regional dominanceover residential broadband. See e.g. David Swanson, “How Comcast Censors Political Content,” OpEd News/After Downing Street (Jul. 17, 2005). After Downing Street is an organization formed to publicize the so-called “Downing Street Memos,” British government documents that political activists claim prove that President Bush deliberately misled the American people to justify the invasion of Iraq. Through the use of the website afterdowningstreet.org, After Downing Street organizes political events, and helps people with like-minded views communicate and organize. After Downing Street uses the internet in no small part because its founders believe the “corporate media” have suppressed coverage of the Downing Street memos and stifled debate on the issue. In short, afterdowningstreet.org is precisely the sort of internet “soap box” celebrated by the Supreme Court and the Commission as shining examples of First Amendment freedom.
Unannounced, Comcast began blocking any email which contained afterdowningstreet.org in the body of the email. This had the effect of immediately cutting off After Downing Street from all Comcast subscribers. Worse, because Comcast did not tell either its subscribers or After Downing Street that it had initiated a blocking policy, the failure of After Downing Street to reach interested listeners went unnoticed for nearly a week. The block interfered with After Downing Street’s efforts to organize events for July 23rd, 2005, the third anniversary of the actual Downing Street memos.
Looking forward to my talk, 4:15 pm, this Friday.
Here are the details of the event. Honored to be one of the speakers.
I got an email saying that my article was among the top ten most downloaded articles on SSRN, among constitutional and statutory articles, from January 31 to today. Turns out I’m not only in the top ten, I’m third.
Not bad for an article I posted only 12 days ago. It’s called First Amendment Architecture; it has received some great attention, and I am pushing its ideas.
Here is the full list.
Also, I visited Northwestern Law School yesterday, and saw a friend on the faculty there. His office looked very academic: books and stacks of papers everywhere. He pointed to the largest stack in the center of his desk, and said, “That’s your article on top.” So people are downloading, hopefully to read, believe, and spread the gospel.
Glad the ideas are getting out there, even in draft.
X-posted at Huffington Post.
Law professors have a lot of theories about what the First Amendment means, but the most “standard” theory is not very useful for addressing some of the most important free speech issues of our time–and that theory would even limit average Americans’ ability to speak with one another. To understand these theory’s frequent uselessness, consider that it does not really incorporate mass media, broadcasting, cable, and Internet laws. Nor does it usually incorporate rules ensuring that all speakers have access to government-owned public parks and streets. These areas of law are merely “exceptions” to their theories, revealing little about the First Amendment’s meaning.
To see the harm, consider what happens when scholars’ do turn to these exceptions. They suggest that government cannot interfere with the “unfettered” private market, even if government is acting to expand the spaces available for average Americans to speak with one another. Imagine government acts to ensure digital spaces are available to all speakers. Government could pass a law saying that phone companies cannot deliberately block phone calls; refuse to carry text messages; or block websites and speech technologies. According to the standard theory, these laws aiming to ensure access to digital speech spaces would violate the First Amendment, despite any argument that these laws promote free speech goals. These laws would supposedly violate the free speech rights phone (or cable) companies–to operate in an unfettered private market free of government interference. They claim “access rules,” which provide Americans access to media and telecom companies’ facilities, consist of dangerous government involvement.
That is, a side effect of scholars theories is to conclude that the First Amendment is not a bedrock for ensuring democratic discourse but a protection for the nation’s largest telecom and media corporations.
I address these issues in a (much longer) recent draft paper, and do so more briefly here. My thinking is influenced by (and in turn influenced) my work as the lead lawyer on a network neutrality case that Jeff Rosen called “a model for the free-speech battles of the future.” Tim Wu called this draft paper an “important work” and “fascinating,” but not everyone can read 70 pages of legal analysis. Here is the Cliff Notes, the version I tell at cocktail parties and indie rock shows.
The problem. Scholars’ standard theories rest on a few Supreme Court decisions. They read these decisions and draw conclusions about “what the First Amendment means.” They downplay the significance of decisions that conflict with these few, chosen opinions, and classify the conflicting decisions as mere “exceptions.”
The flaws with this approach would be obvious elsewhere. Imagine your “baseball theory” is that the Chicago Cubs win the World Series every October; years they win prove your theory, but years when other teams win are mere “exceptions” to the dominant theory. Or, imagine your physics theory is that the universe revolves around the Earth; the moon proves your theory, but the orbits of planets and galaxies are mere “exceptions” to the true theory.
Yes, it sounds a little odd. But that is what First Amendment theory looks like. A few cases prove the theory, while scholars admit many important areas are mere exceptions–from the Internet and broadcast to public streets and parks. And they are “exceptions” precisely because they disagree with the standard theory based on chosen cases.
The standard: theory. The chosen cases are certainly important–they include those protecting the speech of racists, flag-burners, funeral protesters, and other offensive speakers on public property. While protection for the “speech we hate” is very important, the First Amendment does far more than that. But, if you look only at those cases (and cases like them), the core principle of the First Amendment reflects a “negative liberty.” Negative liberty is a political science term meaning a liberty from government action. It is not a liberty to anything–like the liberty to meaningfully contribute to public debate or to have ample spaces for speech. If the core principle is negative liberty, then the First Amendment means government must stay out of the speech market. There are corollary principles (see pages 12-24 for the intrepid). But we can stick to negative liberty here.
But there are exceptions–laws with unusual orbits.
The exceptions: reality. I focus on particular, very important exceptions to test whether the First Amendment is–or should be–merely a negative liberty, rather than broader commitment to our democracy. Specifically: The right to free speech is meaningless without some place to exercise it. What does the First Amendment have to say about Americans access to speak and gather on physical spaces and on digital spaces? The standard theories of negative liberty sounds unconcerned with this issue. So long as government “stays out” and simply respects everyone’s private economic rights, people can speak wherever they have a right to speak.
The standard theories cannot explain reality–so much of reality is an exception to the theories.
Consider some of them.
All of these exceptions conflict with the idea that government must stay out of speech and cannot act to further the speech access of some Americans–even if it requires involvement in the speech market and burdening the property rights of some companies. Reality (or the actual law) conflicts with theory.
The theory dictates that the government need not, and must not, be involved in speech–neither in making physical or digital spaces, neither public nor privately owned spaces, available to Americans for speech. The theory dictates–as several leading scholars have in fact argued–that courts use the First Amendment to strike down any laws passed by congress or agencies that interfere with private speech rights by grant Americans access to “private property” like Internet or phone systems. (For the skeptical, see pages 4, 8-9, 18-19.)
The actual law tells a different story. It’s a more complicated story, just as understanding that stars and planets and moons have different orbits is more complicated than taking the earth as the center of everything. As I (painstakingly) argue, there are several themes and principles evident in the law and Supreme Court decisions that suggest government can provide access to many privately owned spaces for speakers, can require that those spaces be extended to all Americans, can ensure spaces for local and/or national discourse, and can ensure that these spaces carry diverse and antagonistic speakers. (For the curious, see pages 27-51.) The government’s discretion to ensure additional speech spaces also helps justify why the government must make at least streets and parks available: so the public can debate at least these issues, determining whether more spaces are necessary in our democracy.
Usually, when a theory conflicts with reality, the theory must give. Eventually, people will abandon a Cubs-centric baseball theory or an earth-centric physics theory. But, in law, theory can change reality: five Justices could accept the theory and change real law.
The Future of the First Amendment. Changing the law is exactly what scholars argue for. A legal change would align the law with their chosen theories of negative liberty.
What is most at stake in this change is whether the public can adopt laws expanding our access to physical and digital spaces, particularly now as the Internet is as central to American democracy as it is to other nation’s quest for democracy.
Take our example of network neutrality again. The standard theories suggest that government cannot ensure access to digital spaces because that would invite government to make decisions about who can speak that are usually left to the private market; that government would be interfering with the “editorial discretion” of cable and phone companies to “speak” as they wish with their own property, unfettered by government. In fact, when a net neutrality order came before an important federal court last January, a judge asked the lawyer for the affected company (Comcast) why Comcast wasn’t leading with its First Amendment arguments. That First Amendment argument, which follows directly from the standard emphasis on negative liberty, would have empowered Comcast to block technologies on the Internet (such as Miro’s) in the name of their own free speech rights. (See pages 4, 8-9.)
The Supreme Court has not followed this path. Indeed, it deserves to be commended–even now, with a court that does not always favor the free speech rights of the little guy–for upholding and encouraging government’s ability to promote spaces for all Americans to speak. And that the Supreme Court (and most lower courts) have resisted the temptations of this simple theory, in decision after decision, year after year, in medium after medium has been one of the more important and pro-democratic features of our current and past First Amendment. It should remain a key pillar of our law, informing our thinking about what the First Amendment means and should mean, in the free speech battles to come.
Marvin Ammori 