December 15, 2004  ·  Geof Stone

Lots of interesting comments and questions. Let me go back to the beginning, to a time less than a decade after the United States adopted our Constitution. In 1798, there was a bitter political division in the young nation between the Federalists (led by John Adams and Alexander Hamilton) and the Republican (led by Thomas Jefferson and James Madison). In the elections of 1796, the Federalists had retained control of both houses of Congress and Adams had defeated Jefferson by a scant three electoral votes. It’s important to understand that at this time in history Americans were deeply uncertain about the nation’s future. Would democracy work? There was no good precedent. It was truly an experiment, and no one was sure the nation wouldn’t simply fall apart. The Federalists represented the propertied class. They were very concerned about stability and security, and were very anxious about the passions and irresponsibility of the common man. The Republicans exalted liberty over security and were deeply suspicious of the Federalists.

At this time, a war raged in Europe between England and France. The United States tried to maintain its neutrality so it could both avoid war and continue to engage in commerce with both all sides. But in 1798 the United States entered into a treaty with England that infuriated the French. Adams put the nation on war footing. The Federalists gave him a larger army and a larger navy. We were on the brink of declaring war. The Republicans were furious. They were much more sympathetic to the French (who had overthrown their monarchy) and much more hostile to the English (who were still ruled by a monarch). It was in this context that the Federalists enacted the Alien and Sedition Act.

The Alien Act empowered President Adams to arrest, detain, and deport any non-citizen he found to be a danger to the security of the nation. The individual was given no right to a hearing and no right to present evidence in his defense. The Republicans objected that this was unconstitutional; the Federalists responded that aliens had no rights under the United States Constitution because they were not part of “We the People.” The Sedition Act effectively made it a crime for any person to criticize the President, the Congress or the Government of the United States. The Republicans vehemently object that the Act violated the First Amendment; the Federalists argued that in time of war it was essential to stifle criticism of the government because if the People lost confidence in the government they would not make the sacrifices war demands.

The Federalist prosecutors and judges used the Sedition Act exclusively against Republicans, especially against Republican congressmen and editors who criticized the President. Although the Federalists argued that this legislation was necessary because the nation was on the brink of war, the real reason the Federalists wanted it was to silence Republican criticism and thus to ensure that Adams would defeat Jefferson in the election of 1800.

The plan backfired. The American people rose up in protest against these Act and elected Jefferson. This led to the demise of the Federalist Party. Jefferson pardoned all those who had been convicted under the Act. Fifty years later, Congress declared that the Sedition Act of 1798 was unconstitutional, and the Supreme Court has never since missed an opportunity to declare that the Act was unconstitutional in the “court of history.”

There are (at least) two lessons we can learn fro this episode: First, clever politicians will often take advantage of a wartime atmosphere to enact policies that will serve their partisan ends. Second, it will often fall to the People themselves to protect their civil lliberties. They cannot always rely on elected officials or judges to protect them for them.

Do you think any of this is relevant to the present?

December 15, 2004  ·  Geof Stone

How many of you think we live in perilous times? I agree (with those of you who think we do). For the rest of you, think again. We live with the ever-present threat of another terrorist attack. On 9/11, you were shocked. If another such event were to occur five minutes from now, you would be horrified, but not shocked. The expectation now rests just under your level of consciousness.

Moreover, we are engaged in an ever-more disturbing war in Iraq. Last night, I watched the movie Fog of War (the Robert McNamara documentary). The similarities in the depth of American foreign policy misunderstandings between the Vietnam War in 1966 and the Iraq War in 2004 are stiking, and unnerving. There is much to fret about. I want to make it worse. I want to give you something else to worry over. You should be losing sleep about the security of your civil liberties.

The United States has a long and consistent pattern of unduly restricting civil liberties in time of war. Time after time, we have panicked in the face of war fever. We have lashed out at those we fear and allowed ourselves to be manipulated by opportunistic and exploitative politicians. We did this in 1798, when we enacted the Alien and Sedition Acts, during the Civil War when Lincoln suspended the writ of habeas corpus, during World War I when the nation brutally suppressed all criticism of the war and the draft, during World War II when we interned 120,000 individuals of Japanese descent, during the Cold War when we humiliated, abused and silenced tens of thousands of individuals for their political beliefs and associations, and during the Vietnam War when the government engaged in an aggressive program of surveillance, infiltration, and surreptitious harassment designed to “exposre, disrupt, and neutralize” antiwar dissent.

We have made some progress over the past two centuries. We are less likely to do some of these things today than we were in 1798, 1863, 1917, 1942, 1950, or 1968. That is a cause for celebration. But that progress is fragile. The forces unleashed in wartime are extremely powerful, and the fear, anxiety, anger, and vulnerability that war entails can quickly translate into persecution and oppression. Certainly, we have seen warning signs of this in some of the actions of the Bush administration since 9/11. Imagine what might happen if we were now to suffer a succession of six 9/11-like attacks over the next six weeks.

Can we learn the lessons of history? Can we avoid repeating the mistakes of the past? Given the pressures and fears of war, can we discipline ourselves both as individuals and as a nation to respect civil liberties even in a time of war? And is it even sensible to talk seriously about civil liberties in wartime? What do you think?

December 14, 2004  ·  Lessig

So the most significant change in my technology-related life in the last year is the elimination of spam without a white-list technology. I used to use Mailblocks for my main account, but Marc Perkel convinced me to try his own Bayesian spam filter.

I’m on record saying such systems could never work. I was wrong. Marc’s system is amazing. I get endless email. His system filters the mail into three boxes — my inbox, a low probability box, and a high probability box. I have never found a mistake in the high probability box, so I no longer look at it. I very rarely find a mistake in the low probability box, so I scan it about once a week (maybe 1% error). And it is almost fun to get an error in my inbox, reminding me that there still is this problem of spam out there.

Anyway, I’m giving Marc’s spam filter service to my family for Christmas (no, they don’t read my blog). And I’d recommend it to anyone else out there looking for a gift (note, I don’t have any financial interest in this). As Marc described to me:

I sell it as a service. I can do it several ways. If someone wants a single email address I can give them a something@marxmail.net account. $25/year. Or I can host their email domain for $95/year. Or I can be a front end spam filter where I clean it and pass it on to their existing email server $75/year.

You can reach him for at this MarxMail address.

December 13, 2004  ·  Lessig

Dan Gillmor is leaving the SJ Merc to launch a project that continues the best of blogs. Few have the courage to risk so much for this. He has earned praise for the work he has done, and respect for this next step that he is taking.

December 13, 2004  ·  Lessig

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So in the spirit of the times (sussing great gift ideas), I’ve convinced an old friend, and my former Dean, to spend a couple days in this space talking about his new book, In Perilous Times. Starting Wednesday, Geof Stone will be blogging here about the book. It is a great and amazing history, both optimistic and depressing. It will be Geof’s first time blogging, so please make him welcome.

And were I to use this space to self-promote, I might point to Businessweek‘s pick of the top ten books of the year. But I won’t waste your time with that.

December 9, 2004  ·  Lessig

CNUK (as in CN-UK) (as in the webcast radio station in Exeter) has launched “a non-profit organisation that is dedicated to creating and promoting creative works that can be built upon, shared and sampled. All not-for-profit, with for-profit options left available to the creators.”

December 9, 2004  ·  Lessig

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Law enforcement is apparently busy keeping our borders and toystores safe from pirates (read: terrorists). US Customs agents, for example, reportedly seized “clearly piratical copies” of a Stripburger series called “Richie Bush,” a parody of Richie Rich. This followed a report that the Department of Homeland Security sent agents to a toy store to order them to remove a toy called “Magic Cube” from the shelf because it allegedly violated the trademark of Rubik’s Cube. (The patent protecting the cube has expired.) According to the Department’s spokeswomen:
“One of the things that our agency’s responsible for doing is protecting the integrity of the economy and our nation’s financial systems and obviously trademark infringement does have significant economic implications.”

Obviously. Just imagine the spike in GDP produced by the government’s efforts to eliminate competition in children’s toys. And just in time for Christmas no less.