September 15, 2004  ·  Lessig

John Gilmore’s battle to force the government to explain the basis upon which it demands that airlines verify an ID before permitting someone on a plane got a small victory last week. The government had asked to file its brief, defending a rule that is itself secret, in secret. The 9th Circuit said no.

July 17, 2004  ·  Lessig

This story made me homesick. Lewisburg is about 30 miles from where I grew up — Williamsport. The owner of a theatre there has invited card-carrying Republicans to see Fahrenheit 9/11 for free — not because he thinks it a great movie (“both a fantastic film and a fantastically flawed film”), but because he thinks it important that people see it. That led the GOP county chairman from a neighboring county to call the owner and congratulate him — not because he thought the film a great film (“intellectually dishonest as a documentary”), but because he wants to “encourage local Republicans to see the film so they can participate in an informed debate.”

October 14, 2003  ·  Lessig

So imagine this: An employee works for a software company. He discovers a problem with the software, tries to warn the company, but it does nothing. He quits, and then sends email to all the customers of the company, informing them of the security problem with the software. The flood of emails brings the email server down for a bit, but that admittedly does not cause significant damage. Nonetheless, the employee is criminally prosecuted for causing an “impairment to the integrity” of a computer system (by revealing its flaws) which resulted in more than $5,000 in damage (because now it was known to be flawed).

The employee is found guilty. He is sentenced and serves (yes, he actually serves) 16 months in a federal prison.

In America, you ask? Well, in fact, yes — justice in the Central District of California. But it gets better.

On appeal, the employee retains Jennifer Granick, executive director of Stanford’s Center for Internet and Society. She argued the obvious point: it can’t be “damage” to tell the truth about some company’s software — however ugly that truth might be.

Today the government agreed. In an extraordinary (and extraordinarily rare move) it confessed error. “On futher review,” the government wrote, “in light of defendent’s arguments on appeal, the government believes it was error to argue that defendant intended an ‘impairment’ to the integrity of [X's] computer system.” The government asked that the conviction be vacated.

“In light of defendant’s arguments on appeal.”

Indeed, America: Where defendants sometimes get great lawyers, and where governments let justice admit it is wrong.

I am proud, and moved, by both.

August 2, 2003  ·  Lessig

I have the pleasure of serving with John Gilmore on EFF’s board. While there are many things we disagree about, we share many values, and this one in particular: At a time of terror, we should demand reasonableness of those with authority � even more strongly than in times of peace. I view BA’s behavior here to be unreasonable. I don’t doubt they have the “right” to do what they did — such is the nature of law in a time of terror. That’s not, in my view, the point. They have the responsibility to behave reasonably in the face of possible threats. Gilmore’s behavior was not a threat. If it was a threat, removing the button would not have eliminated the threat. Demanding he remove the button as a condition of flying therefore serves no good end, except the end of showing who’s in charge. Reason, not power, should be in charge always, but especially now.

August 2, 2003  ·  Lessig

John has sent me the following response to the comments on the post about his BA experience. I have posted my view here.

From John Gilmore:

It’s been interesting reading. I’d like to respond. I suppose the obvious place to start is with Seth Finkelstein’s trolls. (Of course he is doing what he accuses me of — making outrageous statements and then chuckling when people take them seriously).

I flew to London on Virgin Atlantic two days after the BA incident. I am happy to report that I wore the button, and that neither their passengers, cabin stewards, nor pilots were hysterical. I wore the button in London. I crossed the Channel where the crew gave the shorted possible glance at my passport. I wore it yesterday in Paris.

The button is not a joke. It’s a serious statement which one may agree or disagree with. The point that people seem to be missing is that a “suspected terrorist” is not the same as a “terrorist”. Yet, that’s exactly the conflation that has occurred: treat every citizen like a suspect, and every suspect like a terrorist.

In London and Paris the newspapers are taking Guantanamo seriously — because their own citizens are imprisoned there without trials. The corrupt US government was careful to remove the one US citizen they found — but the citizens of other sovereign countries, even those of very close war allies, are in prison. Without trial and without lawyers, and with intent to try them in front of judges sworn to take orders from the President. I have no doubt that American citizens, such as myself, would be treated in the same way if the public and the courts would let our fascist leader get away with it.

On the BA flight, in my carry-on bag, I had brought the current issue of Reason magazine, which has a cover story with my picture and the label “Suspected Terrorist”. (It didn’t even occur to me to censor my reading material on the flight; I must need political retraining. I hadn’t read most of the issue, including Declan’s piece in it, plus I wanted to show it to Europeans I met on my vacation.) During the British Airways incident I never removed the magazine from my bag, but supposing I had done so, and merely sat in my seat and read it, would that have been grounds to remove me from the flight (button or no button)?

I am not a lawyer (lucky me!) but I do follow legal issues. The carriage of passengers by common carriers is governed by their tariffs, filed with the government. Common carriers are NOT permitted to refuse service to anybody for any reason. In return they are not held liable for the acts of their customers (e.g. transporting dangerous substances, purloined intellectual property, etc). BA’s “Conditions of Carriage” are part of their tariffs (other parts include their prices, etc). You will note paragraph 7: they can refuse passage…7) If you have not obeyed the instructions of our ground staff or a member of the crew of the aircraft relating to safety or security. The crew ONLY has the authority to order passengers around when the orders relate to safety or security. An order to cease reading a book would not qualify.

Some people here (including Mr. Troll) think that the minor risk that someone on the plane will have a panic attack after reading a tiny button, makes the button a “safety” issue, as if I had falsely cried “fire” and risked starting a stampede. Such people seem to be holding me responsible for the actions of others. Were I on such a plane, whether or not I was wearing a button, the person I’d ask them to remove is the one having a panic attack, not the one sitting quietly in their seat.

(Similarly, some people hold me responsible for the inconvenience to passengers. As Virgin Atlantic demonstrated, the airline were in complete control of whether or not to inconvenience the passengers.)

Let me also say in my defense that I seldom fly these days, so I am not used to life in a gulag. I had zero expectation that my refusal to doff a button would result in the captain returning the plane to the gate. But even if I did fly often, my response would be the same: to constantly push back against the rules that turn a free people into the slaves of a totalitarian regime. I push back using the rights granted me by the constitutional structure of the country, plus my own intelligence and resources. Way too many of you readers are like the Poles who, under orders from swaggering bullies, built the brick wall around their own ghetto, as shown in the award-winning movie “The Pianist” (which I watched on the Virgin Atlantic flight). The US is currently filling the swaggering bully role at home, in Iraq, and in the rest of the world. (Come out to free countries and ask around, if you disagree.)

Here are some interesting incidents relating to these issues:

Above, Floyd McWilliams posted a perfect example of what’s wrong with this debate:

Gilmore is insulted by being labeled a “suspected terrorist.” Okay, but then how would an airline figure out that he’s a peaceable fellow except by, well, identifying him? Did he expect to be labeled a low security risk because he wasn’t swarthy?

No. I expected to be treated as peaceable because I had not breached the peace. I expected to be treated as innocent because I was not guilty of any crime.

July 21, 2003  ·  Lessig

I’m almost back after a week away (we’re moving this week so I’m not really back till the 28th), but I wanted to thank the Governor for visiting. I have read his posts, and the couple by his campaign, and have just begun to go through the comments.

The appearance by Governor Dean here has created lots of excitement, some stir, and a bit of anger. I’ve been requested by the University to move my blog to a personal server, which is fine and right given FEC regulations. I’ve been asked by many (and especially supporters of Senator Edwards) whether Dean’s appearance means an endorsement.

But that’s just what was perfect about how this week happened. The Dean campaign asked for no endorsement. Indeed, they asked for nothing save the right to substitute if the Governor didn’t have a chance to post. Rather than the drama of an irrelevant endorsement, this week instead was a chance to expand the places a candidate visits in a campaign for public office. It is better than a house, better than a town hall, better than anything on TV. And imho, more candidates should do it regularly.

I invited Dean in particular because so much of the success of his campaign has come from those who spend time on the Internet, and I suggested that the mix who spent time at my blog had a valuable set of insights that might be useful to understanding the issues that rage on these pages.

But as I’ve said before, these issues are not the central issues of a presidential campaign (yet, anyway). And necessarily, any attention a presidential campaign gives to these issues will be for the purpose of learning. No one launches a campaign for President in 2004 with the aim to “free culture” or limit the excesses of creative regulation. These issues are important. Every administration will have to address them. But they do not yet define a campaign or its message. (We’ll see about 2008.)

So obviously, I would be honored to have other candidates take a week here if they want. But whether it is here or elsewhere, every serious candidate should spend time in just such an open, egalitarian place. Everyone now recognizes that the leading Democratic candidate is the leading candidate in part because of how his message spreads in places like this. They should all find places where they can do the same — unprotected by handlers, exposed to many with strong and deep knowledge of a subject, and open to fair criticism. Let there be one week on a blog for every five choreographed “town halls”, and we’ll begin to see something interesting.

Neutrality aside, though, Governor Dean has earned a special respect. Of course there are issues on which I would disagree with anyone. But I have been struck in reading these posts, and the passion they inspired. They revive a feeling I had as a kid — that ideas could matter, and that there could be people who would make them matter.

They matter here not so much because of the detail of any response, but because of the willingness to carry a message to places like this, and because of the effect these places have on those who spend time in them. If I’ve learned anything as I’ve watched places like this, it is that the best strategy is always simply to say what is right and true, trolls notwithstanding.

Our democracy needs more of this. It needs more candidates spending time in places like this. I am therefore grateful to the Governor for taking the lead. We should all be grateful, our personal politics notwithstanding, if more follow.

May 28, 2003  ·  Lessig

Tonight on PBS, there is a film by a friend’s father. It was his last film before he died. Charles Guggenheim was one of the greatest documentary film makers of the 20th century. If you get a chance, watch Berga: Soldiers of Another War. To find local listings, click here. And if you get a chance to see it, let Davis, Charles Guggenheim’s son, know what you think by emailing him here. (Note: you have to remove the ZIPPOSPAM from the email address).