Enslaving Speech and Thought

from National Public Radio, 2011-Nov-15, by Eyder Peralta:

Is Lying On The Internet Illegal?

Today, a subcommittee of the Committee On The Judiciary heard some fascinating testimony about the Computer Fraud and Abuse Act (CFAA). (We know what that sounds like, but bear with us.)

The hearing, titled "Cyber Security: Protecting America's New Frontier," really focused on big cyber threats to the country's infrastructure, but there was another juicier question that came out of the hearing: The way the Justice Department wants to interpret a current law, lying on the Internet would amount to a crime.

Richard Downing, deputy chief of the Computer Crime and Intellectual Property Section at the Department of Justice, argued that in order to properly protect the country, the part of the CFAA that says a person must exceed their "authorized access" to break the law should include a violation of the terms of service.

Here's how Downing put it in his testimony:

"These are just a few cases, but this tool is used routinely. The plain meaning of the term 'exceeds authorized access,' as used in the CFAA, prohibits insiders from using their otherwise legitimate access to a computer system to engage in improper and often malicious activities. We believe that Congress intended to criminalize such conduct, and we believe that deterring it continues to be important. Because of this, we are highly concerned about the effects of restricting the definition of 'exceeds authorized access' in the CFAA to disallow prosecutions based upon a violation of terms of service or similar contractual agreement with an employer or provider."

In English? When you sign up for a Web service, a dating one or even to attain the ability to comment on NPR.org, you usually agree to a long terms of service that we bet most people don't even read. The way the DOJ wants the law interpreted means breaking any of those terms would constitute a crime.

Orin Kerr, a professor of Law at George Washington University, also testified at the hearing and put it more concretely:

"In the Justice Department's view, the CFAA criminalizes conduct as innocuous as using a fake name on Facebook or lying about your weight in an online dating profile. That situation is intolerable. Routine computer use should not be a crime. Any cybersecurity legislation that this Congress passes should reject the extraordinarily broad interpretations endorsed by the United States Department of Justice."

CNET, which broke this story yesterday, reports that CFAA "has been used by the Justice Department to prosecute a woman, Lori Drew, who used a fake MySpace account to verbally attack a 13-year old girl who then committed suicide. Because MySpace's terms of service prohibit impersonation, Drew was convicted of violating the CFAA. Her conviction was later thrown out."

CNET also reports on opposition to the interpretation:

A letter (PDF) sent to the Senate in August by a left-right coalition including the ACLU, Americans for Tax Reform, the Electronic Frontier Foundation, and FreedomWorks warns of precisely that. "If a person assumes a fictitious identity at a party, there is no federal crime," the letter says. "Yet if they assume that same identity on a social network that prohibits pseudonyms, there may again be a CFAA violation. This is a gross misuse of the law."

Downing defended the government's position in his prepared statement. Downing said while the government appreciates the concern that a wide interpretation of the law would allow prosecutions of "mere" violations of a website's terms of service, "we are concerned that that restricting the statute in this way would make it difficult or impossible to deter and address serious insider threats through prosecution."

Update at 3:39 p.m. ET. An Example:

Just as an example, here's a bit from Facebook's Terms of Service:

1. You will not provide any false personal information on Facebook, or create an account for anyone other than yourself without permission.
2. You will not create more than one personal profile.
3. If we disable your account, you will not create another one without our permission.

from TorrentFreak.com, 2011-Nov-17,

EU Adopts Resolution Against US Domain Seizures

The European Parliament has adopted a resolution which criticizes domain name seizures of “infringing” websites by US authorities. According to the resolution these measures need to be countered as they endanger “the integrity of the global internet and freedom of communication.” With this stance the European Parliament joins an ever-growing list of opposition to the Stop Online Piracy Act.

Starting in 2010, US authorities have used domain name seizures as a standard tool to take down websites that are deemed to facilitate copyright infringement.

Despite fierce criticism from the public, legal experts and civil liberties groups, taking control of domain names is now one of the measures included in the pending Stop Online Piracy Act (SOPA), legislation designed to give copyright holders more tools to protect their rights against foreign sites.

Opposition to SOPA has been swelling in recent days, and today the European Parliament adds its voice by heavily criticizing the domain seizures that are part of it.

A resolution on the EU-US Summit that will be held later this month stresses “the need to protect the integrity of the global internet and freedom of communication by refraining from unilateral measures to revoke IP addresses or domain names.”

If SOPA does indeed become law the US would be able to shut down domains worldwide, as long as they are somehow managed by US companies. This includes the popular .com, .org and .net domains, and thus has the potential to affect many large websites belonging to companies in EU member states.

This can lead to problematic situations.

During one of the seizure rounds earlier this year, US authorities took the domain name Rojadirecta, which belongs to the Spanish company Puerto 80. The site in question had been declared legal in Spain by two courts, but it only took a simple warrant for ICE to take it offline.

Puerto 80 is currently involved in a legal battle in the US to get their domain back, and has reportedly suffered significant losses in traffic and revenue from their streaming portal.

This notice appears on seized sites.

If SOPA passes and these seizures become common practice, thousands of companies will face the threat of losing their domains.

The RIAA and MPAA for example pointed out that they consider the Russian social networking site VKontakte and the Chinese media portal Xunlei as potential targets. These two companies employ hundreds, if not thousands of people, and both are even considering going public on the American stock exchange.

By adopting a resolution against domains seizures the European Parliament recognizes the dangerous precedent the pending SOPA legislation would set, and it wouldn't be a surprise if more foreign criticism follows.

No country should have the ability to simply take over international domain names, and surely the US would feel the same if this plan was put in motion by a foreign country. Or as some 60 press freedom and human rights advocate groups put it in their letter to the US representatives:

“This is as unacceptable to the international community as it would be if a foreign country were to impose similar measures on the United States.”

from TechCrunch.com, 2011-Nov-24, by Robin Wauters:

EU Court Rules ISPs Can't Be Forced To Filter Out Illegal Content

The European Court of Justice this morning ruled that content owners can not strong-arm Internet service providers (ISPs) into filtering out copyright-infringing content.

This case has its origin in a dispute between ISP Scarlet and SABAM, a Belgian management company responsible for authorizing the use by third parties of the musical works of authors, composers and editors. In 2004, the right-holders group established that users of Scarlet's services were downloading such musical works from its catalogue by means of peer-to-peer (p2p) file-sharing networks.

Belgium's Court of First Instance ordered Scarlet, on pain of a periodic penalty, to bring those copyright infringements to an end by making it impossible for its customers to send or receive in any way electronic files – a filter, in other words. Scarlet appealed the decision, claiming the ruling was incompatible with EU law as well as the e-Commerce Directive.

Indeed, EU law says national authorities must not adopt measures which would require an ISP to carry out general monitoring – let alone filtering – of the information that it transmits on its network.

Thus, Europe's highest court this morning ruled:

The Court finds that, in adopting the injunction requiring Scarlet to install such a filtering system, the national court would not be respecting the requirement that a fair balance be struck between the right to intellectual property, on the one hand, and the freedom to conduct business, the right to protection of personal data and the right to receive or impart information, on the other.

Accordingly, the Court's reply is that EU law precludes an injunction made against an internet service provider requiring it to install a system for filtering all electronic communications passing via its services which applies indiscriminately to all its customers, as a preventive measure, exclusively at its expense, and for an unlimited period.

The European Court of Justice said the filtering system would also be liable to infringe the fundamental rights of an ISP's customers, namely their right to protection of their personal data and their right to receive or impart information.

The court also said that while intellectual property rights are enshrined in EU law, there is “nothing whatsoever in the wording of the Charter or in the Court's case-law to suggest that that right is inviolable and must for that reason be absolutely protected”.

Common sense, really, but always good to see a court agree with it.

from the Telegraph of London, 2011-Nov-18, by Victoria Ward and Nick Collins:

EU bans claim that water can prevent dehydration
Brussels bureaucrats were ridiculed yesterday after banning drink manufacturers from claiming that water can prevent dehydration.

EU officials concluded that, following a three-year investigation, there was no evidence to prove the previously undisputed fact.

Producers of bottled water are now forbidden by law from making the claim and will face a two-year jail sentence if they defy the edict, which comes into force in the UK next month.

Last night, critics claimed the EU was at odds with both science and common sense. Conservative MEP Roger Helmer said: “This is stupidity writ large.

“The euro is burning, the EU is falling apart and yet here they are: highly-paid, highly-pensioned officials worrying about the obvious qualities of water and trying to deny us the right to say what is patently true.

“If ever there were an episode which demonstrates the folly of the great European project then this is it.”

NHS health guidelines state clearly that drinking water helps avoid dehydration, and that Britons should drink at least 1.2 litres per day.

The Department for Health disputed the wisdom of the new law. A spokesman said: “Of course water hydrates. While we support the EU in preventing false claims about products, we need to exercise common sense as far as possible."

German professors Dr Andreas Hahn and Dr Moritz Hagenmeyer, who advise food manufacturers on how to advertise their products, asked the European Commission if the claim could be made on labels.

They compiled what they assumed was an uncontroversial statement in order to test new laws which allow products to claim they can reduce the risk of disease, subject to EU approval.

They applied for the right to state that “regular consumption of significant amounts of water can reduce the risk of development of dehydration” as well as preventing a decrease in performance.

However, last February, the European Food Standards Authority (EFSA) refused to approve the statement.

A meeting of 21 scientists in Parma, Italy, concluded that reduced water content in the body was a symptom of dehydration and not something that drinking water could subsequently control.

Now the EFSA verdict has been turned into an EU directive which was issued on Wednesday.

Ukip MEP Paul Nuttall said the ruling made the “bendy banana law” look “positively sane”.

He said: “I had to read this four or five times before I believed it. It is a perfect example of what Brussels does best. Spend three years, with 20 separate pieces of correspondence before summoning 21 professors to Parma where they decide with great solemnity that drinking water cannot be sold as a way to combat dehydration.

“Then they make this judgment law and make it clear that if anybody dares sell water claiming that it is effective against dehydration they could get into serious legal bother.

EU regulations, which aim to uphold food standards across member states, are frequently criticised.

Rules banning bent bananas and curved cucumbers were scrapped in 2008 after causing international ridicule.

Prof Hahn, from the Institute for Food Science and Human Nutrition at Hanover Leibniz University, said the European Commission had made another mistake with its latest ruling.

“What is our reaction to the outcome? Let us put it this way: We are neither surprised nor delighted.

“The European Commission is wrong; it should have authorised the claim. That should be more than clear to anyone who has consumed water in the past, and who has not? We fear there is something wrong in the state of Europe.”

Prof Brian Ratcliffe, spokesman for the Nutrition Society, said dehydration was usually caused by a clinical condition and that one could remain adequately hydrated without drinking water.

He said: “The EU is saying that this does not reduce the risk of dehydration and that is correct.

“This claim is trying to imply that there is something special about bottled water which is not a reasonable claim.”

from WJXT Jacksonville, 2011-Dec-1:

Teen stopped at airport for design on purse
17-year-old missed flight to Jacksonville after agents inspected gun replica

JACKSONVILLE, Fla. - A teenage girl's sense of style got her in trouble at the airport.

Vanessa Gibbs, 17, claims the Transportation Security Administration stopped her at the security gate because of the design of a gun on her handbag.

Gibbs said she had no problem going through security at Jacksonville International Airport, but rather, when she headed home from Virginia.

"It's my style, it's camouflage, it has an old western gun on it," Gibbs said.

But her preference for the pistol style didn't sit well with TSA agents at the Norfolk airport.

Gibbs said she was headed back home to Jacksonville from a holiday trip when an agent flagged her purse as a security risk.

"She was like, 'This is a federal offense because it's in the shape of a gun,'" Gibbs said. "I'm like, 'But it's a design on a purse. How is it a federal offense?'"

After agents figured out the gun was a fake, Gibbs said, TSA told her to check the bag or turn it over.

By the time security wrapped up the inspection, the pregnant teen missed her flight, and Southwest Airlines sent her to Orlando instead, worrying her mother, who was already waiting for her to arrive at JIA.

"Oh, it's terrifying. I was so upset," said Tami Gibbs, the teen's mom. "I was on the phone all the way to Orlando trying to figure out what was going on with her. It was terrifying. I don't ever want to go through it again."

Vanessa and her mom said it's hard to believe anyone could mistake the design on the purse for a real gun because it's just a few inches in size and it's hollow, not to mention Vanessa has taken it on planes before.

"I carried this from Jacksonville to Norfolk, and I've carried it from Norfolk to Jacksonville," Vanessa said. "Never once has anyone said anything about it until now."

TSA isn't budging on the handbag, arguing the phony gun could be considered a "replica weapon." The TSA says "replica weapons have prohibited since 2002."

It's a rule that Vanessa feels can't be applied to a purse.

"Common sense," she said. "It's a purse, not a weapon."

A TSA official at JIA said it's not that uncommon for passengers to wear something that could be considered a gun replica, but the official encourages everyone to check the prohibited items list, which can be found online or at the airport before going through security.

from Forbes online, 2011-Nov-22, by Alex Knapp:

Librarians Protest Penguin Decision To Limit E-Book Lending
The American Library Association is protesting Penguin's decision to limit library lending of its e-books – many of which libraries had already paid for.

“Librarians are the secret masters of the world. They control information. Don't ever piss one off.”
- Spider Robinson

Penguin Group USA's decision to limit library lending of its new e-books, as well as halt library lending of all of its Kindle editions, took many librarians by surprise. However, they're not taking this decision lying down. The American Library Association has just issued a statement demanding that library access to the e-books impacted by this decision be restored.

“If Penguin has an issue with Amazon, we ask that they deal with Amazon directly and not hold libraries hostage to a conflict of business models,” said ALA President-elect Maureen Sullivan. “This situation is one more log thrown onto the fire of libraries' abilities to provide access to books – in this case titles they've already purchased. Penguin should restore access for library patrons now.”

Sci-fi author and electronic freedom activist Cory Doctorow noted on BoingBoing that there's a bigger issue at stake in this dispute. “The fact that Amazon is capable of doing this — the fact that books can be revoked after they're sold — is a vivid demonstration of the inevitably disastrous consequences of building censorship tools into devices.”

I have to agree with this. I'd freely admit that I like Amazon a great deal, and I adore my Kindle, which is never out of my sight. But the fact that books already purchased by libraries can be locked down like this is troubling, to say the least.

from the Washington Post, 2011-Nov-15, by Cecilia Kang:

Web giants at odds with Chamber of Commerce over piracy bill

Some of Silicon Valley's biggest names are threatening to leave the U.S. Chamber of Commerce over a bill that would make Web companies liable for pirated content that appears on their sites.

Last month, Yahoo quietly quit the powerful business trade group, which supports the legislation. Google and the Consumer Electronics Association, which represents 2,200 firms, are warning they may do the same.

“Given the fact that their mission is to grow the American economy, sponsoring legislation that would harm one sector that is perhaps the brightest spot of the economy is short-sighted,” said CEA senior vice president Michael Petricone. “It makes one wonder what their membership will be like in the future.”

When asked whether CEA would drop its membership, he replied: “We are comfortably reassessing groups we are members of.”

Spats between the Chamber and its members rarely spill out into public view. And it's unclear how an exodus of technology firms would impact the lobbying group's considerable weight in Washington. The group does not disclose the names of its members, many of whom pay substantial amounts for the Chamber's lobbying prowess.

The legislation could punish Web firms if copyrighted movies, songs or software appear on their sites. But it would address long-standing concerns from Hollywood studios, record labels and publishing houses, which lose $135 billion in revenues each year from piracy and counterfeiting, according to Chamber estimates.

The Chamber would not comment specifically on the decisions of individual members. But it argued that the proposals moving through the House and Senate would improve the quality of media content online and thus benefit Web firms.

“This is a common-sense way forward that is good for the whole industry,” said Steve Tepp, chief counsel on intellectual property for the Chamber's Global IP Center.

Many Silicon Valley companies agree that piracy is a problem but say the legislation goes too far. Web giants including Facebook, Google, Yahoo, LinkedIn, eBay, and Mozilla on Tuesday co-wrote a letter to Senate and House lawmakers urging Congress to reconsider the measures. They fear the proposals would invite lawsuits and empower law enforcement to shut down their operations if a copyrighted movie or song appeared on their sites without their authorization.

The House Stop Online Piracy Act, introduced by Rep. Lamar Smith (R-Tex.), will be debated in a House Judiciary Committee hearing Wednesday. A similar bill introduced by Sen. Patrick J. Leahy (D-Vt.), with 40 co-sponsors, was approved by the Judiciary Committee in September.

Novelist Lisa Scottline, author of “Look Again” and dozens of other titles, said new laws are necessary because current enforcement isn't preventing illegal copies of her work from being exchanged on the Web.

“It's appallingly easy and makes it very difficult for any writer trying to make it,” she said.

Opponents of the measures say the new law should protect Web firms that do their best to remove illegal content. And as the bills move closer to approval, Silicon Valley companies have ramped up their lobbying efforts. Investors in companies such as Twitter and Foursquare have recently come to Washington to try to persuade lawmakers to vote against the legislation.

“This is an issue every Web company has to care about, and Google cares about any issue that threatens the nature of the Internet and how it operates,” said a person familiar with Google's thinking, who spoke on the condition of anonymity because of the ongoing debate involving the bill. The person added that Google is “considering options” that could include canceling its membership with the Chamber.

A Yahoo spokeswoman declined to comment on its decision to cancel its membership with the Chamber. People familiar with the company's thinking say the Chamber's advocacy of anti-piracy laws was the final straw in a series of decisions that didn't benefit the firm. They spoke on the condition of anonymity because of Yahoo's business relationships with current Chamber members.

Facebook is a member of the Chamber but declined to comment about the group's position. Twitter is not a member.

from the Washington Post, 2011-Nov-16, by Cecilia Kang:

SOPA, controversial online piracy bill, gains support as lobbying intensifies

Several lawmakers expressed support Wednesday for a controversial bill aimed at curbing online piracy as lobbying over the issue reached a fever pitch.

In a House Judiciary Committee hearing on a bill proposed by committee Chairman Lamar Smith (R-Tex.), a bipartisan group of lawmakers said new laws are needed to help media outlets, software makers and retailers fight the illegal distribution of movies, songs and software.

Smith's Stop Online Piracy Act is aimed at foreign sites dedicated to pirated material, but Web giants such as Google and Facebook and telecommunications firms say his proposal goes too far, making them responsible for shutting down bad actors.

“The problem of rogue Web sites is real, immediate and widespread. It harms all sectors of the economy,” Smith said during the hearing.

Several lawmakers expressed concern that the illegal exchange of copyrighted movies, software and music is draining U.S. media companies and that current laws don't give law enforcement enough power to stop bad actors.

And some questioned the motives of Web giants fighting the legislation.

Opposition is “really about the bottom line,” said Rep. Mel Watt (D-N.C.). “Sites that specialize in stolen goods attract lots of users and lots of ads.”

Supporters and critics of the measure ramped up their lobbying efforts ahead of the hearing.

Google, Facebook, Yahoo and other Web giants launched a media blitz on Wednesday with full-page newspaper ads urging lawmakers to vote against the proposal. Vague language in the bill would force them to shut down the domain names of infringing sites and would lead to lawsuits, they said. Telecommunications firms, including Verizon Communications, complained that the bill would force them to stop Internet traffic that contained illegal content.

Supporters of the legislation, ranging from Hollywood studios to pharmaceutical companies, argued during the hearing that they are losing an estimated $135 billion a year in pirated material.

“Fundamentally, this is about jobs,” said Michael O'Leary, who represented the Motion Picture Association of America at the hearing. He argued that not just actors and directors are affected; piracy also has a ripple effect on thousands of businesses that are associated with the movie business.

Smith has said he hopes to move his legislation to markup before the end of the year. A similar Senate bill passed the Judiciary Committee in September.

The House proposal came about suddenly, critics say, and without consultation from high-tech and telecommunications firms.

“Inexplicably, and almost overnight, SOPA has morphed into a full-on assault against lawful U.S. Internet companies,” said Markham C. Erickson, executive director of NetCoalition, a group representing Web firms and public interest groups opposed to the law. “This makes no sense to us, nor will it to the millions of Internet users who depend on it for communications, commerce and democracy.”

A Verizon executive said in an interview Wednesday that the legislation puts too much of the burden on Internet service providers to create new technologies to monitor and stop illegal consumer use of Web content.

“We have a number of concerns with the bill,” said the executive, who spoke on the condition of anonymity because of the sensitive nature of the legislative push. “And we have been shut out of the process in writing this, even though it is very technical and requires us to use a range of technically difficult things to enforce this legislation.”

from Time Magazine online, 2011-Nov-7, by Jerry Brito:

Congress's Piracy Blacklist Plan: A Cure Worse than the Disease?

Last month, Yahoo quit the U.S. Chamber of Commerce, one of the most powerful lobbies in Washington, over the Chamber's support of a Senate anti-piracy bill known as the PROTECT IP Act. Now Google is considering doing the same over the Stop Online Piracy Act (SOPA), a companion bill recently introduced in the House. These high-profile walkouts are a sign of what's at stake.

For the content industry—including Hollywood and the recording industry—SOPA and PROTECT IP are necessary to fight foreign copyright infringers that usually stand outside the reach of U.S. law. Domestic domains, such as those ending in .com or .net, can already be seized by the government with a court order. However, U.S. authorities don't have the power to seize foreign domains, and such domains are often used by sites that illegally stream movies and sports or offer music for free downloads.

SOPA and PROTECT IP allow the government to target foreign sites by essentially disappearing them. How the bills accomplish the disappearing act is among the issues that rankle the Internet companies.

The Domain Name System (DNS) is what translates easy-to-remember website names, like TIME.com, to their true numerical Internet addresses, like 216.35.74.104. When you type in a website name, your computer queries a DNS server to get the numerical address. Most consumers use a DNS server provided by their ISP, though some use third-party servers like the Google Public DNS.

SOPA and PROTECT IP would allow prosecutors to get a court order declaring a foreign site as infringing, and the order could then be used to require DNS service providers to block the allegedly infringing sites. This means they will essentially be required to keep a blacklist of rogue foreign sites, and when a user tries to get the numerical address for a blacklisted site, the server would have to return either nothing or an error page. As far as the user is concerned, the site will have disappeared.

There are many reasons to dislike these anti-piracy bills—from overly broad definitions of what counts as infringement, to how they may shift the burden of policing from content owners to the service providers—yet the proposed meddling with the Internet's Domain Name System is the most alarming.

First, blacklisting and disappearing sites will likely do little to stop committed pirates. For one thing, a blacklisted site will still exist and will still be accessible from its numerical address.

A quick Google search shows that there already are pirate streaming sites known only by their numerical IP address. There are also browser plugins that will translate a rogue site's name into its numerical address even if the DNS server doesn't (although SOPA would criminalize the distribution of such add-ons). And a committed infringer could also simply switch to using a foreign DNS server not bound by the U.S. blacklist.

As for casual infringement, it's true that some users may well simply give up after an unresponsive query. On the margin, therefore, DNS filtering will no doubt reduce piracy. But what we have to ask ourselves is, at what cost? And that cost is legitimizing government blacklists of forbidden information.

At a moment when Secretary of State Hillary Clinton is urging world governments to keep their hands off the Internet, creating a blacklist would send the wrong message. And not just to China or Iran, which already engage in DNS filtering, but to liberal democracies that might want to block information they find naughty. Imagine if the U.K. created a blacklist of American newspapers that its courts found violated celebrities' privacy? Or what if France blocked American sites it believed contained hate speech? We forget, but those countries don't have a First Amendment.

The result could be a virtually broken Internet where some sites exist for half the world and not for the other. The alternative is to leave the DNS alone and focus (as the bills also do) on going after the cash flow of rogue websites. As frustrating as it must be for the content owners who are getting ripped off, there are some cures worse than the disease.

from the Los Angeles Times, 2011-Oct-26, by Jon Healey:

Technology: A bipartisan attempt to regulate the Internet?

Leaders of the House Judiciary Committee introduced a beefed-up version Wednesday of the Senate Judiciary Committee's proposed Protect IP Act, offering Hollywood new tools to go after foreign piracy hotbeds -- as well as opening online storage, content-sharing and auction sites in the U.S. and elsewhere to attack from copyright and trademark owners.

The 78-page Stop Online Piracy Act (HR 3261) boasts a rare degree of bipartisan support, reflecting the combined influence of such backers as the U.S. Chamber of Commerce and the Motion Picture Assn. of America. But it drew an even sharper outcry from tech-industry advocates than the Protect IP Act.

Both measures would let federal prosecutors seek court orders shutting down foreign websites that are dedicated to piracy. Those orders would require Internet service providers, online advertisers and payment systems to redirect traffic and dollars away from the sites.

There's broad support for cutting off the financial lifeline for piracy hotbeds. But the bills' requirement that ISPs try to block their customers from reaching those sites has drawn opposition from an array of technology companies and networking engineers, who warn that it would encourage consumers to use alternate domain-name servers. That, in turn, would fragment the domain-name system and stymie efforts to make the Net less hospitable to malware.

Tech companies are also concerned about the power the Senate bill would grant to copyright holders to seek injunctions against sites they believe are dedicated to infringing activities -- a description that Viacom's attorneys could well have applied to YouTube before it started automatically checking uploads against a database of copyrighted works. But the private right of action in the House bill makes the Senate provision seem tame by comparison.

Labeling their approach a "market-based system" to protect consumers and property owners, the authors of HR 3261 would require advertisers, credit card companies and other payment processors to stop providing ads or payment services to any site that a copyright or trademark holder claimed was "dedicated to the theft of U.S. property." No court would need to be involved unless the operator of the site filed a counter-notice asserting that it didn't fit the bill's definition of a dedicated infringer.

That definition is so broad, it could snare all sorts of cloud-based services, said Markham Erickson, executive director of the NetCoalition tech advocacy group. The problem starts with the bill's focus on Web "sites," which as a technical matter can be a single page within a domain. An eBay listing could be considered a "site," as could a Facebook timeline, a Flickr page or a Dropbox folder.

Making matters worse, the bill broadens the notion of what it means to be "dedicated to the theft of U.S. property." In addition to sites that are primarily designed or marketed for infringing uses, the bill's definition includes sites whose operators "avoid confirming a high probability" that they will be used to infringe or who had at any previous time promoted infringements.

According to Erickson, the only way for ad networks and payment processors to respond to a notification about a supposedly offending site would be to block service to the entire domain. Hence, "you can shut down YouTube, you can shut down internet commerce sites, you can shut down hosting sites" for infringements on just a fraction of their pages, Erickson said.

The MPAA disagreeswith Erickson's view of what constitutes a "site," arguing that there could be no confusion between what lawmakers are targeting and legitimate online services. But the liability the House bill would create for operators who "avoid confirming a high probability" of infringing uses implies a new duty on Web sites and services to police themselves and their users. Such a duty, Erickson said, would reverse the safeguards provided by the Digital Millennium Copyright Act in 1998. Those safeguards have been crucial to cloud-based services and providers of online platforms.

"This bill is a direct attack on technology," Erickson said. "Technology that allows for sharing of informtation ... anything that could foster infringement can be covered by this bill. To me, that's the headline of this. This is a dramatically different approach from what we've seen."

David Sohn, senior policy council of the centrist Center on Democracy and Technology, offered a similar assessment:

This bill raises serious red flags. It includes the most controversial parts of the Senate's Protect IP Act, but radically expands the scope. Any website that features user-generated content or that enables cloud-based data storage could end up in its crosshairs. ISPs would face new and open-ended obligations to monitor and police user behavior. Payment processors and ad networks would be required to cut off business with any website that rightsholders allege hasn't done enough to police infringement. The bill represents a serious threat to online innovation and to legitimate online communications tools.

Advocates for copyright and trademark owners disagreed, calling the bill an appropriate response to the serious threat posed by overseas piracy hotbeds.

Cary Sherman, head of the Recording Industry Assn. of America, had this to say about HR 3261, which was introduced by House Judiciary Committee Chairman Lamar Smith (R-Texas):

This legislation is a first step towards a brighter day when these rogue offshore websites can no longer duck accountability under U.S. laws, all the while providing a critical boost to the marketplace for legal digital music services.  The Smith bill sensibly requires relevant parties to work together to address the collateral damage caused to everyone involved in legitimate online commerce and appropriately complements other voluntary efforts already underway.  Notably, the bill also allows reasonable flexibility for ISPs in determining the most appropriate technological manner for blocking illegal sites and provides ample legal safeguards for sites accused of infringement.  

Here are a few more examples from supporters:

“Websites that blatantly steal the creativity and innovation of American industries violate a fundamental right to property. Operators of rogue sites threaten American jobs, endanger consumer safety, and undermine the vitality of the online marketplace."

-- Thomas J. Donohue, chief executive of the U.S. Chamber of Commerce

 “Online theft in the U.S. and overseas threatens the independent film industry and must be stopped. For the Independents, who finance films by pre-selling the rights to distributors worldwide, the drastic damage caused by online theft is measured both in films that cannot be produced and in lost returns on investment in films that have been produced.  Independents account for 70% of all U.S. film production, so every independent film that can't be financed and produced has a dramatic impact on jobs and the economy.  We appreciate the House Judiciary Committee's serious bipartisan work in bringing this bill forward to address both rogue websites and felony streaming, and we look forward to working with them to ensure that strong measures are adopted.”

-- Jean Prewitt, chief executive of the Independent Film &Television Alliance

“The Internet is an important tool which has opened opportunities for our industry from distribution to marketing to connecting with fans, but there is a segment of web operators who are criminals, pure and simple, and we must do more to stop them. Current laws tie the hands of both law enforcement and judicial personnel in many instances, to the detriment of American business and consumers. Legislation introduced today in the U.S. House would help fix that, enabling our justice system to go after criminal operatives."

-- David Israelite, chief executive of the National Music Publishers Assn.

The most interesting thing to me about the bill is that, after more than a year of talks among lawmakers, copyright and trademark interests and tech-industry lobbyists, Smith offered a bill that pushes the sides even further apart. The measure isn't likely to run into the usual partisan snarl that kills so many pieces of legislation these days; copyright issues don't break down along party lines. Instead, this one will test the relative clout of copyright and trademark holders against Google, Silicon Valley entrepreneurs and the hands-off-the-Internet crowd. There's consensus to be had on combating the likes of The Pirate Bay, but it's not to be found in HR 3261.

from ArsTechnica.com, 2011-Oct-26, by Nate Anderson:

House takes Senate's bad Internet censorship bill, tries making it worse

Imagine a world in which any intellectual property holder can, without ever appearing before a judge or setting foot in a courtroom, shut down any website's online advertising programs and block access to credit card payments. The credit card processors and the advertising networks would be required to take quick action against the named website; only the filing of a “counter notification” by the website could get service restored.

It's the world envisioned by Rep. Lamar Hunt (R-TX) in today's introduction of the Stop Online Piracy Act in the US House of Representatives. This isn't some off-the-wall piece of legislation with no chance of passing, either; it's the House equivalent to the Senate's PROTECT IP Act, which would officially bring Internet censorship to the US as a matter of law.

Calling its plan a “market-based system to protect US customers and prevent US funding of sites dedicated to theft of US property,” the new bill gives broad powers to private actors. Any holder of intellectual property rights could simply send a letter to ad network operators like Google and to payment processors like MasterCard, Visa, and PayPal, demanding these companies cut off access to any site the IP holder names as an infringer.

The scheme is much like the Digital Millennium Copyright Act's (DMCA) "takedown notices," in which a copyright holder can demand some piece of content be removed from sites like YouTube with a letter. The content will be removed unless the person who posted the content objects; at that point, the copyright holder can decide if it wants to take the person to court over the issue.

Here, though, the stakes are higher. Rather than requesting the takedown of certain hosted material, intellectual property owners can go directly for the jugular: marketing and revenue for the entire site. So long as the intellectual property holders include some “specific facts” supporting their infringement claim, ad networks and payment processors will have five days to cut off contact with the website in question.

The scheme is largely targeted at foreign websites which do not recognize US law, and which therefore will often refuse to comply with takedown requests. But the potential for abuse—even inadvertent abuse—here is astonishing, given the terrifically outsized stick with which content owners can now beat on suspected infringers.

Blockade

One thing private actors can't do under the new bill is actually block a site from the Internet, though it hardly matters, because the government has agreed to do it for them. The bill gives government lawyers the power to go to court and obtain an injunction against any foreign website based on a generally single-sided presentation to a judge. Once that happens, Internet providers have 5 days to “prevent access by its subscribers located within the United States to the foreign infringing site.”

The government can also go after anyone who builds a tool designed for the "circumvention or bypassing" of the Internet block. Such tools already exist as a result of the US government's ongoing campaign to seize Internet domain names it believes host infringing content; they can redirect visitors who enter the site's address to its new location. The government has already asked Web browser makers like Mozilla to remove access to these sorts of tools. Mozilla refused, so the new bill just tries to ban such tools completely. (Pointing your computer's browser to a foreign DNS server in order to view a less-censored Internet still appears to be legal.)

Search engines, too, are affected, with the duty to prevent the site in question “from being served as a direct hypertext link.” Payment processors and ad networks would also have to cut off the site.

Finally, and for good measure, Internet service providers and payment processors get the green light to simply block access to sites on their own volition—no content owner notification even needed. So long as they believe the site is “dedicated to the theft of US property,” Internet providers and payment processors can't be sued.

"Industry norms"

The House bill is shockingly sympathetic to a narrow subsection of business interests. For instance, buried deep in the back of the >70-page document is a requirement that the US Intellectual Property Enforcement Coordinator prepare a study for Congress. That study should analyze “notorious foreign infringers” and attempt to quantify the “significant harm inflicted by notorious foreign infringers.” (Talk about assuming your conclusions before you start.)

The report, which is specifically charged to give weight to the views of content owners, requests a set of specific policy recommendations that might “encourage foreign businesses to adopt industry norms to promote the protection of intellectual property globally.” Should the bill pass, the US government would be explicitly charged with promoting private “industry norms”—not actual laws or treaties—around the world.

In the request for the report, we can also see the IP maximalist lobby preparing for its next move: shutting off access to US capital markets and preventing companies from "offering stock for sale to the public" in the US.

Call it what it is

Not all censorship is bad—but we need to have an honest discussion about when and how to deploy it, rather than wrapping an unprecedented set of censorship tools in meaningless terms like "rogue site," or by calling a key section of the new bill the "E-PARASITE Act."

You don't have to support piracy—and we don't—to see the many problems with this new approach. Just today, the RIAA submitted to the US government a list of "notorious markets." As part of that list, the RIAA included "cyberlockers" like MegaUpload, which are "notorious services" that "thumb their noses at international laws, all while pocketing significant advertising revenues from trafficking in free, unlicensed copyrighted materials."

It's not hard to imagine how long it would take before such sites--which certainly do host plenty of user-uploaded infringing content--are targeted under the new law. Yet they have a host of legal uses, and cyberlockers like RapidShare have been declared legal by both US and European courts.

Not surprisingly, the new bill is getting pushback from groups like NetCoalition, which counts Google, Yahoo, and small ISPs among its members. "As leading brands of the Internet, we strongly oppose offshore 'rogue' websites and share policymakers' goal of combating online infringement of copyrights and trademarks," said executive director Markham Erickson in a statement.

"However, we do not believe that the solution lies in regulating the Internet and comprising its stability and security. We do not believe that it is worth overturning a decade of settled law that has formed the legal foundation for all social media. And finally, we do not believe that it is worth restricting free speech or providing comfort to totalitarian regimes that seek to control and restrict the Internet freedoms of their own citizens."

Dozens of law professors have also claimed the original PROTECT IP Act, which contains most of the same ideas, is unconstitutional. But the drumbeat for some sort of censorship is growing louder.

from TechDirt.com, 2011-Oct-27, by Mike Masnick:

E-PARASITES Bill: 'The End Of The Internet As We Know It'
from the this-gets-worse-and-worse dept

We already wrote about the ridiculously bad E-PARASITES bill (the Enforcing and Protecting American Rights Against Sites Intent on Theft and Exploitation Act), but having now had a chance go to through the full bill a few more times, there are even more bad things in there that I missed on the first read-through. Now I understand why Rep. Zoe Lofgren's first reaction to this bill was to say that "this would mean the end of the Internet as we know it."

She's right. The more you look at the details, the more you realize how this bill is an astounding wishlist of everything that the legacy entertainment gatekeepers have wanted in the law for decades and were unable to get. It effectively dismantles the DMCA's safe harbors, what's left of the Sony Betamax decision, puts massive liability on tons of US-based websites, and will lead to widespread blocking of websites and services based solely on accusations of some infringement. It's hard to overstate just how bad this bill is.

And, while its mechanisms are similar to the way China's Great Firewall works (by putting liability on service providers if they fail to block sites), it's even worse than that. At least the Chinese Great Firewall is determined by government talking points. The E-PARASITES bill allows for a massive private right of action that effectively lets any copyright holder take action against sites they don't like. (Oh, and the bill is being called both the Stop Online Piracy Act (SOPA) and E-PARASITES (which covers the PROTECT IP-like parts of the bill, SOPA refers to the larger bill that also includes the felony streaming part).

Some of the key problems with the bill, beyond what we discussed yesterday:

• While supporters of the bill still continue to insist that this bill is only targeted at foreign infringers, that's false. Part of the bill focuses on foreign infringers -- the part that allows the Attorney General to kill websites. But the private right of action section has no such restriction. Instead, it allows copyright holders to effectively kill any site they'd like. You have to dig down into the details to see this, but let's pull out the key sections to see. The act, in section 104, defines sites that are "dedicated to the theft of US property" as including any "US-directed site" that:

  is taking, or has taken deliberate actions to avoid confirming a high probability of the use of the U.S.-directed site to carry out acts that constitute a violation of section 501 or 1201 of title 17, United States Code;

  If that sounds massively confusing, you're right. But what it's saying, in the most twisted language possible, is that if it's probable that a site used in the US (note no restriction to just foreign sites here) can be used to infringe, and that site fails to take some sort of action against the "high probability" that the site can be used to infringe, then it can be declared dedicated to the theft of US property. This turns both the DMCA safe harbors and the Supreme Court's Sony Betamax ruling completely on their heads. In effect, it appears to be saying that if you choose not to self-police your site for infringement -- i.e., putting up filters, or proactively monitoring content for infringement -- you can be declared in violation of the law... at which point a court can order all ad networks and payment processors to automatically stop doing business with you.

  Think of all the sites this could effect. Twitter, Facebook, YouTube, Tumblr, SoundCloud, Ebay, Flickr, Wikipedia, Craigslist, Wordpress -- basically any site that has any user-generated content. If they don't proactively filter or monitor their content, they could be at risk of a claim that they took "deliberate actions to avoid confirming a high probability" that their sites could be used to infringe... and thus they could be subject to an action by a private party that strips them of both ad revenue and the ability to process any payments.

  Remember how Monster Cable -- massive supporters of this bill -- declared both Craigslist and eBay as being dedicated to infringement? Under this bill, a company like Monster could take action against those sites, putting a tremendous burden on them.

• The definitional problems don't stop there. Separate from the ridiculous definition above, this act would also declare a site "dedicated to theft of U.S. property," if it is "primarily designed" in a way that "engages in, enables, or facilitates" a violation of copyright law. Those last two points are ridiculously broad. "Enables" infringement? "Facilitates"? That's practically the entire internet. The primary design of YouTube, Twitter, Facebook, etc. all "enable" or "facilitate" infringement.
• While some reporters claimed that the "private right of action" was taken out of this bill, or even "softened," nothing could be further from the truth. The details show that the private right of action is significantly worse in this bill. What changed is that in PROTECT IP, private copyright holders could go to court to force payment processors and ad networks to stop dealing with sites they accuse. Under E-PARASITES, before they go to court, they first have to send a notification, very similar to a DMCA takedown notice. But, of course, as we've seen with the DMCA, while it's "voluntary" to comply, if you don't comply you lose safe harbors -- so nearly everyone complies. That means this private right of action almost certainly will lead to ad networks and payment processors cutting off any site they receive a notification on -- no matter how legitimate. And, while the bill does allow for a counternotification process, unlike the DMCA, there is no requirement that the payment processors and ad networks restore service to anyone who files a counternotice, after a given period of time (absent a lawsuit). In other words: a copyright holder could issue a bogus claim that a site is dedicated to infringement, and the payment processor and ad network could pull the plug on the site... and even if a counternotice is filed, those services have no obligation to bring back service.

  Again, using our Monster Cable example, it could force all payment processors to no longer allow payments on Craigslist or eBay, and even if those sites filed counternotices, the service providers would be under no obligation to turn those things back on. And just think of the massive, irreparable harm if legitimate sites lose both the ability to accept payments and to have ads for just a few days? And while there is liability for those who file false notices, as we've seen with the DMCA, such provisions are rarely, if ever, enforced -- and generally are interpreted to only apply in cases of extreme misrepresentation.

• As noted above, the private right of action establishes an astoundingly broad new standard for what's considered infringing. Beyond user-generated content sites, pretty much any cloud computing service can be deemed "dedicated to the theft of US property," if they choose not to filter and monitor the content being sent through the cloud. Any of the online locker services are in serious trouble if this bill becomes law. Amazon's and Google's music services would have to monitor your uploads and try to stop infringement to avoid liability. Box.net and Dropbox would likely have to monitor what files you're storing to avoid liability. It's honestly that insane.
• Supporters of the bill, beyond falsely claiming that it's just focused on foreign sites, are also claiming that this bill does not target such sites. An aide to the House Judiciary Committee, who supports the bill, claimed, "Sites that host user content -- like YouTube, Facebook and Twitter -- have nothing to be concerned about under this bill." But that's demonstrably false. Perhaps this aide is unaware that Viacom is still in the middle of a $1 billion lawsuit claiming that YouTube was dedicated to infringement. Under the definitions in this bill, YouTube would absolutely have been liable, and likely would have been shut down years ago. In fact, Viacom never would have had to sue. It would have just made use of the notification process, and kept any and all advertising and payment processing from the site... and voila, dead YouTube, without the benefit of a judge reviewing the case (and, need we remind the House Judiciary Committee, that so far the judge has sided with YouTube?).
• The bill would be red meat to any foreign government that censors its internet. China, Iran, Saudi Arabia are going to love this. The mechanisms for censorship are quite similar. Under E-PARASITES, service providers have to proactively block to prevent liability. China's Great Firewall works the exact same way: by threatening ISPs with liability if they don't block content harmful to Chinese citizens. Replace harmful to Chinese citizens with "a high probability" of being used for infringement... and you've got E-PARASITES.
• Another change between this bill and the Senate's PROTECT IP is that this bill calls out "search engines" more directly, rather than "information location tools," as in the Senate bill. While that may seem to be narrower, the definition of a search engine is ridiculously broad (of course).

  The term ``Internet search engine'' means a service made available via the Internet that searches, crawls, categorizes, or indexes information or Web sites available elsewhere on the Internet and on the basis of a user query or selection that consists of terms, concepts, categories, questions, or other data returns to the user a means, such as a hyperlinked list of Uniform Resource Locators, of locating, viewing, or downloading such information or data available on the Internet relating to such query or selection.

  Under this definition, Techdirt could be declared a search engine under this law. After all, we take "questions" and queries from readers, and often return stories that link elsewhere on the internet. Yikes!
• As highlighted above, there are all sorts of definitional problems with the bill. And you can tell how insane things get with definitions when the authors of this bill even go so far as to define the word "including." I'm not joking:

  INCLUDING.--The term "including" means including, but not limited to.

  This is the kind of mess we're dealing with.

About the only good thing is that the insanity and out-and-out censorship and hindering of the internet that this bill provides appears to have scared off co-sponsors of the bill. Despite a massive lobbying effort from the US Chamber of Commerce and the MPAA (among some others), Rep. Lamar Smith was only able to wrangle up eleven co-sponsors. For a bill of this nature, this is woefully low. Even more surprising is that they couldn't even get Rep. Mel Watt to co-sponsor the bill, despite being the ranking Democrat on the IP subcommittee of the House Judiciary Committee. Instead, they had to settle for Howard Bermand, the Representative from Disney. In other words, it appears that many Congressional reps have heard the massive concerns of the public, technologists, entrepreneurs, investors, artists, human rights activists, and many others who are quite afraid of how this bill will break the internet. And that means that it can only help to continue to speak out and reach out to your representatives about how awful this bill is, and how much harm it would do.

from Reuters, 2011-Nov-2, by Adrian Croft and Georgina Prodhan, with additional reporting by Peter Apps, Michael Holden and writing by Peter Apps:

UK, U.S. talk tough on web freedom at cyber talks

LONDON - Britain and the United States strongly rejected calls from China and Russia for greater Internet controls on Tuesday at a major conference on the future of cyberspace, although Western states too faced accusations of double standards.

While Western states worry about intellectual property theft and hacking, authoritarian governments are alarmed at the role the Internet and social media played in the protests that swept the Arab world this year.

In September, China, Russia, Tajikistan and Uzbekistan proposed to the United Nations a global code of conduct including the principle that "policy authority for Internet-related public issues is the sovereign right of states".

Cyber security experts say western Nations hoped to fend off those calls for a "cyber treaty" and to prompt China, Russia and others to rein in hackers. Speaking by video link after U.S. Secretary of State Hillary Clinton pulled out of the two-day London meeting for family reasons, Vice President Joe Biden was particularly direct.

"What citizens do online should not, as some have suggested, be decreed solely by groups of governments making decisions for them somewhere on high," he said. "No citizen of any country should be subject to a repressive global code when they send an email or post a comment to a news article. They should not be prevented from sharing their innovations with global consumers simply because they live across a national frontier. That is not how the internet should ever work in our view."

To impose such controls on the Internet, Biden said, would stifle innovation. If countries wanted the economic benefits of connectivity, he they needed openness.

Britain faced some criticism at the conference following Prime Minister David Cameron's suggestion this August after England's riots that government might impose controls on some social media platforms. But Foreign Secretary William Hague struck a similar tone to Biden.

"Too many states around the world are seeking to go beyond legitimate interference or disagree with us about what constitutes 'legitimate' behaviour," Hague told the meeting of ministers, tech executives and Internet activists.

"The idea of freedom cannot be contained behind bars, no matter how strong the lock."

On Wednesday, delegates will continue to discuss potential international co-operation to tackle online crime, child pornography and other threats -- seen by many as the most likely area on which some agreement might be reached.

At a press conference organised by his delegation, Russian official Igor Shchegolev denied the "code of conduct" was part of a plan to censor the Internet, saying it was simply about refreshing now outdated telecommunications treaties.

"We in Russia are convinced that it is impossible to block or censor the Internet," he said. "Some countries in Europe declare that some social disturbance takes place they will close access to Twitter and Facebook. Russia doesn't even consider this possibility."

WESTERN STATES CRITICISED

Some other speakers at the conference said Cameron's suggested block of at least some social media platforms had put the West in an awkward position.

"It's very easy to defend this case of black and white human rights against dictatorships around the world, but as soon as our own Western-style stability of the state is called into question then freedom of expression is expendable. There should be one rule for all, including Western governments," said John Kampfner, chief executive of Index on Censorship.

Around 60 countries, including China, Russia and India, were represented at the conference as well as tech industry figures such as Jimmy Wales, founder of Wikipedia, and senior executives from Facebook and Google.

Wales told the conference he believed many attempts to regulate the flow of information -- such as British court "superinjunctions" which celebrities have used to block discussion of embarrassing stories -- were "bad law".

"We see all the time these kinds of laws," he said. "Maybe there are better ways than to rely on government control."

In a closed session, government and business officials discussed cybersecurity, with a mounting number of cyber attacks and hacking attempts seen high on the agenda.

On the eve of the conference, the head of Britain's communications spy agency said UK government and industry computer systems faced a "disturbing" number of cyber attacks, including a serious assault on the Foreign Office's network.

In his speech to the conference, Prime Minister Cameron described such attacks as "unacceptable". Whilst he did not refer directly to his riots comments, he said future prosperity and peace depended on managing cyberspace properly.

"Governments must not use cyber security as an excuse for censorship, or to deny people the opportunities that the internet represents," Cameron said. "The balance we've got to strike is between freedom and a free-for-all."

from the Weekly Standard, 2011-Oct-7, printed 2011-Oct-17, by Mark Hemingway:

The Perils of Donating to Perry
The SEC's curious role in campaign finance.

Last week, the Rick Perry campaign announced with great fanfare that the Texas governor had raised $17 million for his presidential campaign in the July-September quarter. That's more than any other GOP hopeful, and since Perry was a recent entrant to the presidential race, he raised that sum in just 49 days.

But here's why Perry's fundraising achievement is really impressive: In March, the SEC enacted “pay-to-play” rule 206(4)-5. The regulation prohibits investment advisers who contribute more than $350 to state or local officials who can influence their state's investment decisions from receiving payment from that state government for two years.

According to the Los Angeles Times, in 2008 securities firms alone gave Republican presidential candidates $20 million. Thanks to the new rule, that fundraising reservoir may remain largely untapped by the Perry campaign, for fear that donating to the Texas governor would prevent financial professionals from doing business with the second-largest state in the country.

Perry's campaign admits this has made fundraising more difficult. “As the only sitting governor in the race for the White House, Perry is much more negatively impacted by the SEC rules than anyone else in the race,” says campaign communications director Ray Sullivan. “It has and will continue to hamper our efforts to raise money, especially from the financial sector. It has made things quite challenging in New York, for example.”

And while this new ruling primarily affects Perry at the presidential level, it could have far-reaching consequences going forward, since it applies to every state office holder seeking federal office from here on out.

The new SEC regulation comes on top of an existing Municipal Securities Rulemaking Board (MSRB) regulation of the financial service industry​—​known as rule G-37​—​that restricts campaign donations to state office holders by those dealing in municipal bonds. (The MSRB is subject to SEC oversight.)

“Its genesis goes back to 1994 when the SEC began to regulate political contributions made to officials of issuers, who are basically mayors and governors and others who appoint people who select those who write or underwrite municipal bonds,” says Kenneth A. Gross, an expert on campaign law compliance at the law firm Skadden, Arps, Slate, Meagher & Flom. “There were many scandals in the late '80s, early '90s involving Orange County and other places where big firms on Wall Street were getting underwriting business because they made contributions to the right people in the right amounts.”

Like the association of scandal with municipal bonds, a regulatory crackdown on the cozy relationships between state politicians and investment advisers is not without precedent. In 2010, the Quadrangle Group agreed to pay $12 million to the state of New York after it emerged that Quadrangle cofounder Steve Rattner had paid significant sums to an adviser of New York State comptroller Alan Hevesi. Quadrangle subsequently received a $150 million investment from the state's pension fund. (Rattner went on to serve in the Obama administration as the White House's “car czar,” helping broker bailouts for U.S. auto companies.)

According to Gross, former SEC chairman Arthur Levitt had proposed extending pay-to-play rules to cover investment advisers back in 1999, but the regulations weren't pursued by Bush administration SEC appointees. The idea was revived by the Obama administration after the Quadrangle arrangement drew public scrutiny to the ties between state officials and investment advisers.

Nobody really disputes that the new SEC pay-to-play rules have the potential to clean up the political process. The perceived problem, however, is that the new rule makes it unduly difficult for state officeholders to raise money to challenge federal incumbents.

Between those dealing in municipal bonds and the hedge funds, private equity firms and other financial institutions restricted by the new SEC regulations​—​the gatekeepers of nearly $5 trillion of America's wealth​—​are now severely restricted from donating to the campaigns of state officeholders.

The fact that these regulations apply to some presidential candidates and not to others is not lost on the Perry campaign. “It does seem curious and unbalanced to heavily regulate and undermine the ability of state officials to legally raise funds and leave federal officials comparatively exempt from those regulations,” says Sullivan.

In the era of Dodd-Frank legislation, Congress and the White House have taken a great interest in banking regulations, and they have been lobbied heavily in response. It's hard to argue that cracking down on financial industry donors to state officeholders is warranted but that Congress shouldn't be subject to similar regulations.

And as it happens, Dodd-Frank is yet another example of federal regulations restricting fundraising for state officeholders. “Dodd-Frank has two new pay-to-play laws that will be on the books and in effect before this election is over having to do with municipal advisers, including banks, and perhaps accounting firms and engineering firms,” says Gross. “So we're going to have four federal pay-to-play laws that largely regulate nothing but state and local officials.”

There are currently no pay-to-play rules that apply to federal incumbents, despite any number of scandals similar to those used to justify the regulation of state officials. For instance, Rep. Barney Frank, the Massachusetts Democrat of the eponymous banking legislation, was involved in a romantic relationship with a Fannie Mae executive while the government-sponsored mortgage backer was making lavish political donations and successfully lobbying Frank's congressional banking committee to loosen mortgage standards.

This double standard is highlighted by the Perry campaign. “Congress does have a habit of exempting themselves and treating federal elected officials better than state and local officials. It is ironic that much of the financial crisis, to the extent that government was involved, they were federal agencies, federal bureaucrats, and federal officials that set the ground rules,” says Sullivan.

The SEC has a wide amount of discretion in how they enforce these campaign donation regulations. With both the MSRB's G-37 rule and the SEC's 206(4)-5 rule, direct and indirect contributions to officials are restricted. And what exactly constitutes an “indirect contribution” to a political campaign isn't strictly defined.

“There are certain things we can definitely say are indirect contributions that are problematic. For example, having your spouse write the check because you can't. Or having your neighbor write the check and reimbursing them,” says Melissa L. Laurenza, an election law attorney at Akin, Gump, Hauer and Feld. But beyond that, “the MSRB said they specifically weren't going to give any more guidance because they wanted the ability to review things on a case by case basis, and the SEC basically says the same thing in their rulemaking.”

Which raises the $64,000, or in this case the $350 question: How will the SEC rule on contributions to super PACs? Contributions to super PACs are currently considered independent expenditures by the FEC and could be a way to circumvent the new SEC restrictions. “The Securities and Exchange Commission, which has much broader rules and unfair dealing rules and much more discretion in interpreting these constitutional issues that the Federal Election Commission gets all spun up about, may well determine that's problematic,” says Gross.

Gross wonders if the SEC's determinations on super PACs will come down to how the individual PACs are operated​—​who set them up, who operates them, who does the soliciting. But that could require the SEC to make unprecedented political investigations and judgments.

If the SEC starts making decisions that are seen as becoming a determinative factor in who wins elections, the agency runs the risk of a political backlash. An SEC investigation might also carry the whiff of scandal, particularly when they're enforcing regulations that don't apply to the opposing candidates.

Many would like to see the SEC's rules clarified, especially with regard to super PACs. “That's probably one area that causes some discomfort​—​if I give to a [hypothetical super PAC called] Citizens for Perry, am I going to trigger a ban on doing business in Texas?” wonders Laurenza.

Whether these regulations are necessary for clean elections or simply amount to an incumbent-protection racket remains to be seen. The regulations appear to provide the financial services industry an incentive to concentrate their lobbying efforts at the federal level.

No one is certain how major campaign donors will respond to the new regulatory reality. Gross sent a memo to Skadden's influential clientele saying that “covered firms, employees and their PACs should avoid making contributions to Governor Perry's presidential campaign. .  .  . Moreover, they should avoid soliciting or coordinating contributions on his behalf, such as serving on his finance committee.”

Laurenza has more heartening news for the Perry campaign. “I've heard some people say that they feel so strongly they've just decided they're not going to do business in Texas. They say, `For the next two years, Texas is off the table and we're going to go like gangbusters for Perry,' ” she says. “For some people it's a big problem, and for others they just say, `To heck with it.' ”

The Perry campaign is no doubt hoping a lot more donors simply decide to say the heck with it. You could say they're banking on it.

from CNET News, 2011-Oct-14, by Declan McCullagh:

Free-trade pacts export U.S. copyright controls

President Obama called the approval of free-trade agreements with Colombia, Panama, and South Korea this week "a major win for American workers."

What he didn't add is that the deals, which were given final approval on Wednesday by the U.S. Congress, are also a major win for the motion picture industry and other large U.S. copyright holders. Other portions specify that consumers can have their choice of computer software, but "subject to the needs of law enforcement."

You won't find this highlighted on the administration's Web site (really, Web sites), but the three free-trade agreements export some of the more controversial sections of U.S. copyright law.

One chapter of the complex agreements echoes the Digital Millennium Copyright Act (DMCA), which the U.S. enacted in 1998 over the objections of librarians and computer scientists. It's been used to threaten college professors, stymie research into HP security vulnerabilities, and jail a Russian programmer who created an e-book conversion utility.

Now Colombia, Panama, and South Korea will be required to prohibit circumventing any "technological measure that controls access to a protected work"--meaning that making a backup copy of a DVD or video game will become illegal, and, depending on the details, a crime as well.

The language of Chapter 18 (PDF), the intellectual property section, does not include the limited safeguards that Americans enjoy. The U.S. DMCA, for instance, allows the U.S. Copyright Office to consider the state of computer technology and create exceptions, a requirement that is not exported to the signatories.

In the U.S., it's not against the law "for a person to engage in an act of security testing." That authorization is missing in the free-trade agreements. Also absent are most of the exemptions created by the Copyright Office, including ones relating to bypassing e-book and video game security in some cases, circumventing dongle-based restrictions, and copying clips from DVDs for documentary filmmaking.

Which is probably one reason why copyright holders were so enthusiastic about the free-trade agreements' passage yesterday. The Recording Industry Association of America said it was "extremely pleased."

To the Motion Picture Association of America, which said it "thanks Congress for approving these trade agreements," the deals will curtail "the content theft that hinders our industry's growth abroad." Even the Entertainment Software Association, representing video game publishers, predicted Congress' action "boosts exports, opens prospects for new markets and grows high-paying jobs."

In other words, the central "anti-circumvention" sections of the DMCA are exported, but not some of the protections designed to protect researchers and other people who make legitimate use of copyrighted material.

This kind of paracopyright-law export doesn't sit well with Sherwin Siy, deputy legal director at the advocacy group Public Knowledge, which has been critical of the DMCA in the past.

"It's definitely worth noting, and we've long been leery of quasi-legislation through international agreements," Siy said.

The U.S. Chamber of Commerce, which applauded the passage of the trade deals through Congress, downplayed the significance of the DMCA-esque language. Steve Tepp, chief counsel for the Chamber's Global IP Center, said it was "virtually verbatim from provisions of U.S. law enacted in the DMCA in 1998."

To be sure, there are plenty of sections of the trade deals that are likely to be applauded by even the most ardent skeptic of copyright law. Chapter 15, on electronic commerce, limits customs duties on any "digital product transmitted electronically." Electronic authentication and digital signatures are also explicitly permitted.

Bush administration trade negotiators routinely inserted DMCA-like language into bilateral agreements. It appeared in a 2003 pact with Singapore, and another a year later with Australia. These deals, the first negotiated by the Obama administration, show it's following suit.

A law enforcement veto?
Another section (PDF) of the trade deal seems to recognize only a limited right by Americans to create and use computer programs of their choice.

It says: "Each party recognizes that consumers in its territory should be able to...run applications and services of their choice, subject to the needs of law enforcement."

A U.S. trade official, who did not want to be named, told CNET that the language is "hortatory" and therefore not binding--in other words, it's a recognition, not a commitment to actually do anything.

"The intent is to make sure device makers and telcos do not introduce technology that could thwart a CALEA--an existing U.S. law--requirement to build into networks lawful interception capability," the trade official said. "Who decides? In the first instance, the law enforcement community."

The language--"subject to the needs of law enforcement"--dates back to a Federal Communications Commission "policy document" from the Net neutrality wars of 2005. It also echoes the late 1990s, when the FBI was lobbying for a law banning encryption without backdoors for the Feds. (A House of Representatives committee approved such a bill but it did not clear the Congress.)

"As followers of the Net neutrality debate will recognize, this text is partly a dog whistle for placating Hollywood about piracy," says Matt Schruers, vice president for law and policy at the Computer and Communications Industry Association.

from ArsTechnica.com, 2011-Oct-11, by Sean Gallagher:

Verisign wants power to shut sites down upon law enforcement request

In a request made yesterday to the Internet Corporation for Assigned Names and Numbers, Verisign outlined a new “anti-abuse” policy that would allow the company to terminate, lock, or transfer any domain under its registration jurisdiction under a number of circumstances. And one of those circumstances listed was “requests of law enforcement.”

The request, submitted through ICANN's Registry Services Evaluation Process on October 10, proposes a new malware scanning service for domains as well as a new Verisign Anti-Abuse Domain Use Policy. In the request letter, Verisign stated that its policy would help the registrar align with requirements ICANN is placing on new generic top level domains. “All parts of the internet community are feeling the pressure to be more proactive in dealing with malicious activity,” Verisign explained. “ICANN has recognized this and the new gTLD Applicant Guidebook requires new gTLDs to adopt a clear definition of rapid takedown or suspension systems that will be implemented.”

In part, the policy is aimed at empowering Verisign to act quickly to take down sites that are harboring malware, launching phishing attacks, or otherwise being used to launch attacks across the Internet. The scanning service, which registrars can opt into voluntarily, would scan sites on all .com, .net and .name sites for “known malware,” and inform the registrar and the site owner when malware is detected. Verisign has been soliciting domain registrars to participate in a pilot of the program, derived from the company's Verisign Trust Seal program, since March.

But the request also asks for authority to take down sites quickly for a number of reasons beyond malware, including “to protect the integrity, security and stability of the DNS; to comply with any applicable court orders, laws, government rules or requirements, requests of law enforcement or other governmental or quasi-governmental agency, or any dispute resolution process; (and) to avoid any liability, civil or criminal, on the part of Verisign, as well as its affiliates, subsidiaries, officers, directors, and employees... Verisign also reserves the right to place upon registry lock, hold or similar status a domain name during resolution of a dispute.”

Verisign said it has been piloting takedown procedures with US law enforcement agencies, cybersecurity experts, US government Computer Emergeny Readiness Teams, and domain registrars to establish baseline procedures, and has begun planning pilots with European government agencies and registrars. Just what those baseline procedures are—and what recourse domain holders who run afoul of them have—hasn't been spelled out. Verisign says it "will be offering a protest procedure to support restoring a domain name to the zone."

Aden Fine, senior attorney with the ACLU, said in an interview with Ars Technica that the "protest procedure" is cause for concern. "The default shouldn't be 'take down first'," he said. "Any time the government is involved in seizing websites, that raises serious First Amendment issues. It doesn't matter if it's a private company pushing the button."

Electronic Frontier Foundation media relations director and digital rights analyst Rebecca Jeschke told Ars Technica that Verisign's proposal is "an extraordinarily bad idea." "We've already seen how problematic domain seizures are through the ICE (Immigration and Customs Enforcement) shutdowns," she said. "It's similar to things the US government is trying to get through congress with the Protect IP Act, though there's a little more oversight in Protect IP. The key is if you're going to do something as drastic as taking a whole site offline, you at least need some meaningful court review. "

[By October 13, Verisign had with withdrawn their proposal, as indicated at http://www.icann.org/en/registries/rsep/, re: proposal #2011008. -AMPP Ed.]

from the Wall Street Journal, 2011-Sep-27, by Gary Fields and John R. Emshwiller:

The Animal Enterprise Terrorism Act Sets an Unusual Standard for Crime

In response to attacks on researchers by animal-rights activists, Congress in 2006 passed the Animal Enterprise Terrorism Act. The bill made a critical change to the legislation it replaced: Demonstrators could now earn a sentence in federal prison if the target of their attention felt threatened, regardless of the protesters' actual intention.

The law has emerged as a central example of how Congress has eroded the legal concept of mens rea, which is Latin for "guilty mind"—a long-held protection that says a defendant must know they've done something wrong to be found guilty of it.

The 2006 act was cited in a joint study by the conservative Heritage Foundation and the National Association of Criminal Defense Lawyers as an example of an overly broad law, particularly the way it clashed with First Amendment free-speech protections. The first case brought under its provisions was tossed in federal court.

For a controversial topic, the legislation received scant attention in Congress. Under Congress's sometimes arcane voting rules, the bill passed both chambers with fewer than 10 members voting in total, out of a possible 535. Because of the voting method, no record was kept of the exact number.

The bill was a redo of the Animal Enterprise Protection Act of 1992, which focused on attacks on "animal enterprises" such as zoos, research labs, circuses, stockyards and pet stores. Rep. Thomas Petri (R., Wis.) introduced the bill in the House in November 2005 with nearly four dozen co-sponsors from both parties.

At a House Judiciary subcommittee hearing in May 2006 victims talked about being targeted and threatened at their homes. One received a hoax telephone call telling her to come to the local morgue to identify a family member.

Sen. Dianne Feinstein (D., Calif.) with input from counterterrorism experts from the Federal Bureau of Investigation and the Justice Department, introduced an amended Senate version.

Norman Reimer, executive director of the National Association of Criminal Defense Lawyers, said the bill can turn a simple protest into a criminal act if it causes fear in the target. The crime then turns on the victim's mental state, regardless of what the defendant intended.

In February 2009, four defendants in California were charged with participating in demonstrations at the homes of college professors who used animals in biomedical research. According to the criminal complaint, the four were among protesters who picketed and chanted outside the researchers' homes, calling them murderers. In one instance they went online to download information about researchers they left on fliers in a Santa Cruz café.

Federal District Judge Ronald Whyte dismissed the case, saying the indictment didn't make clear exactly what criminal behavior the defendants were supposed to have exhibited. "Any defendant—constitutionally presumed to be innocent—would be hard-pressed to discern" from the indictment, the judge said, "what it is that he or she has done that is alleged to have violated the law."

from the Wall Street Journal, 2011-Jul-12:

The Taxman Retreateth
The IRS stops its attack on political donors, at least for now.

The IRS last week abandoned its plan to audit major political donors just in time for the 2012 election season to begin in earnest. We're glad to see the agency back down from this ill-conceived campaign, but it's a shame it took a public backlash to deter its apparent ambition to be a political watchdog.

In May, the IRS sent letters to five big-time political donors advising that their donations to nonprofit groups that register under section 501(c)(4) of the tax code were subject to gift taxes, which might be owed retroactively. The letters were a shot at conservative political advocacy groups, which outspent liberal groups in the 2010 election cycle for the first time since 1994.

The backtracking is good news for the donors who were targets of the political dragnet, at least for now. The IRS stopped short of promising not to pursue similar claims in the future, saying only that it wouldn't do anything more while it "review[s] the need for additional guidance or legislation" and that any future action will be "prospective and after notice to the public." The escapade may also have costs for donors who have since paid gift taxes on their contributions to ensure they were abiding by the law. IRS spokesman Frank Keith was noncommittal on whether they'd be getting refunds.

Since the Supreme Court's 2010 decision in Citizens United restored the First Amendment rights of businesses and unions to donate to independent political groups, Democrats have been desperate to find a way to control all the irritating new speech flooding the political arena. They've tried to pass the Disclose Act to impose new disclosure requirements on political donors and encouraged the Federal Communications Commission to force disclosure on groups that run political ads.

This spring, the Obama Administration even drafted an executive order requiring disclosure for anyone bidding on a federal contract. When the draft order conveniently disappeared under a pile of papers at the White House after its contents were leaked, California Representative Anna Eshoo tried to attach it as an amendment to the 2012 Defense authorization bill last week.

Montana Senator Max Baucus had been pushing the IRS to crack down on political donors. But the IRS has maintained that all of this was the work of career gnomes and that the Administration knew nothing about it. Mr. Keith said last week that "decisions to open, suspend and close the audits were made by career civil servants and were not the result of any outside influence."

Whoever gets credit for this delightful interlude, the effect of the investigation was to make an example of high-dollar donors and discourage political speech. By leaving open the possibility of future investigations, the IRS has also left a lingering atmosphere of uncertainty among current donors. We doubt that's unintended.

from the Wall Street Journal, 2011-Jul-2, by Neil Strauss:

The Insidious Evils of 'Like' Culture
In our age of online view counts and retweets, conformity is becoming the rule

If you happen to be reading this article online, you'll notice that right above it, there is a button labeled "like." Please stop reading and click on "like" right now.

Thank you. I feel much better. It's good to be liked.

Don't forget to comment on, tweet, blog about and StumbleUpon this article. And be sure to "+1" it if you're on the newly launched Google+ social network. In fact, if you don't want to read the rest of this article, at least stay on the page for a few minutes before clicking elsewhere. That way, it will appear to the site analytics as if you've read the whole thing.

Once, there was something called a point of view. And, after much strife and conflict, it eventually became a commonly held idea in some parts of the world that people were entitled to their own points of view.

Unfortunately, this idea is becoming an anachronism. When the Internet first came into public use, it was hailed as a liberation from conformity, a floating world ruled by passion, creativity, innovation and freedom of information. When it was hijacked first by advertising and then by commerce, it seemed like it had been fully co-opted and brought into line with human greed and ambition.

But there was one other element of human nature that the Internet still needed to conquer: the need to belong. The "like" button began on the website FriendFeed in 2007, appeared on Facebook in 2009, began spreading everywhere from YouTube to Amazon to most major news sites last year, and has now been officially embraced by Google as the agreeable, supportive and more status-conscious "+1." As a result, we can now search not just for information, merchandise and kitten videos on the Internet, but for approval.

Just as stand-up comedians are trained to be funny by observing which of their lines and expressions are greeted with laughter, so too are our thoughts online molded to conform to popular opinion by these buttons. A status update that is met with no likes (or a clever tweet that isn't retweeted) becomes the equivalent of a joke met with silence. It must be rethought and rewritten. And so we don't show our true selves online, but a mask designed to conform to the opinions of those around us.

Conversely, when we're looking at someone else's content—whether a video or a news story—we are able to see first how many people liked it and, often, whether our friends liked it. And so we are encouraged not to form our own opinion but to look to others for cues on how to feel.

"Like" culture is antithetical to the concept of self-esteem, which a healthy individual should be developing from the inside out rather than from the outside in. Instead, we are shaped by our stats, which include not just "likes" but the number of comments generated in response to what we write and the number of friends or followers we have. I've seen rock stars agonize over the fact that another artist has far more Facebook "likes" and Twitter followers than they do.

Because it's so easy to medicate our need for self-worth by pandering to win followers, "likes" and view counts, social media have become the métier of choice for many people who might otherwise channel that energy into books, music or art—or even into their own Web ventures.

The same is true of the productivity of already established writers and artists. I was recently on a radio show with an author who, the interviewer said, had tweeted, on average, every 20 minutes for the past two years. Yet, despite all the time and effort spent amassing and catering to followers, as soon as a social network falls out of use, like MySpace, all that work collapses like a castle built of sand.

The psychoanalyst Erich Fromm presciently wrote over 60 years ago that man has "constructed a complicated social machine to administer the technical machine he built…. The more powerful and gigantic the forces are which he unleashes, the more powerless he feels himself as a human being. He is owned by his creations, and has lost ownership of himself."

So let's rise up against the tyranny of the "like" button. Share what makes you different from everyone else, not what makes you exactly the same. Write about what's important to you, not what you think everyone else wants to hear. Form your own opinions of something you're reading, rather than looking at the feedback for cues about what to think. And, unless you truly believe that microblogging is your art form, don't waste your time in pursuit of a quick fix of self-esteem and start focusing on your true passions.

And please, despite what I said earlier, do not +1, tweet, StumbleUpon, like or comment on this article. You'll only be making it worse.

—Mr. Strauss is the author of seven best-selling books. His latest book is "Everyone Loves You When You're Dead: Journeys Into Fame and Madness."

from eWeek.com, 2005-Mar-23, by Steven Vaughan-Nichols:

Software Patents and Mutually Assured Destruction

Opinion: The Cold War policy of MAD was that things could never get too ugly between the United States and the Soviet Union because if one of us went too far, the other could bomb it into the stone age … and vice-versa. That may be where we're

Have I mentioned that I hate software patents?

Why, yes, I have. Many times.

Im also a realist. Maybe someday, PUBPAT (the Public Patent Foundation) and other patent-reform groups such as the Electronic Freedom Foundations Patent-Busting Project will succeed in getting rid of software patents, but Im not holding my breath.

Even with Microsoft backing some software patent reform, amazing but true, I just cant see significant changes to U.S. patent law happening anytime soon.

And lest we forget, Microsoft isnt exactly the most trustworthy company in the world when it comes to patents.

Just this week, Microsoft announced that a new, integrated IPv4/IPv6 network stack would be in its upcoming Longhorn operating system. At the same time, lawyers for the Public Patent Foundation and the Software Freedom Law Center are concerned over a patent about automatic generation of IP addresses to facilitate simple network connections.

If my network-savvy readers say that sounds a bit like some of the features of IPv6 and DHCP (Dynamic Host Configuration Protocol), well yes it does, doesnt it.

Now, IPv6 isnt that important in North America at this time, but sooner or later, everyone on a TCP/IP network connected with the Internet is going to have to deploy it. Some people, with good reason I think, are concerned that Microsoft might use that patent to try to place a tariff on all programs that access the next generation of the Internet.

This is only part of what many see as a pattern of Microsoft getting ready to retroactively claim IP (intellectual property) rights over many of the Internets basic protocols.

Maybe they are, but Darl McBride, the CEO of The SCO Group, made me think that that may not be the case. We were talking about patents on Tuesday—no, SCO is not getting ready with a surprise patent lawsuit—and he said he didnt think Microsoft would dare use its patents in such a broad way.

His logic was that the technology world is a lot like the world situation of the 50s through the 80s, when the Soviet Union and the United States never went to outright war with each other because of the cynical but all too practical notion of MAD (mutually assured destruction).

In a nutshell, the policy of MAD was that things could never get too ugly between the United States and the Soviet Union because if one of us went too far, the other could bomb it into the stone age … and vice-versa.

How that applies to todays computing world is that if Microsoft started really throwing its patent weight around, IBM or Novell could retaliate in kind. Thus, if any one company tried to really strangle a large part of the market with an overly aggressive patent enforcement, they would be blasted by other companies with large patent portfolios. The end result would be that all of the companies involved would be locked into a software development doomsday, where nothing could be developed.

This isnt just idle speculation. After talking with McBride, I contacted several other people. Both a senior Novell executive and a prominent open-source attorney told me that if Microsoft ever tries to push too hard with its patents, other companies are more than ready to counter-attack with their own patent portfolios.

Lets take this analogy a little further. The peaceful coexistence based on MAD between the Soviets and the Americans meant that we didnt see World War III. We did, however, see lots of brushfire wars in Afghanistan, Angola and Vietnam.

Thus, just because the big companies may never go too far with their patents with each other and worldwide technologies such as the Internet doesnt mean that smaller companies or open-source developers wont be attacked. They will be.

Of course, as the good people at Black Duck Software will tell you, a patent holder doesnt actually have to sue you for a violation. Just the mere threat is enough to stop a company from developing or marketing a program if it doesnt have the legal protection or deep pockets needed to fight a patent battle in the courts.

So, while I now think that were unlikely to see any truly broad attempts to abuse software patents, I still believe that software patents are bad in general and that, in specific, small companies and open-source developers are still vulnerable to the bullying of software-patent superpowers.

from National Public Radio, 2011-Jul-22:

When Patents Attack

Update, July 26: This story from Planet Money's Alex Blumberg and NPR's Laura Sydell aired this weekend on This American Life. (Check out TAL's "Ways to Listen" page to find how you can hear the story.) A shorter version of the piece is also airing today on All Things Considered. Here's the story.

Nathan Myhrvold is a genius and a polymath. He made hundreds of millions of dollars as Microsoft's chief technology officer, he's discovered dinosaur fossils, and he recently co-authored a six-volume cookbook that "reveals science-inspired techniques for preparing food."

Myhrvold has more than 100 patents to his name, and he's cast himself as a man determined to give his fellow inventors their due. In 2000, he founded a company called Intellectual Ventures, which he calls "a company that invests in invention."

But Myhrvold's company has a different image among many Silicon Valley insiders.

The influential blog Techdirt regularly refers to Intellectual Ventures as a patent troll. IPWatchdog, an intellectual property site, called IV "patent troll public enemy #1." These blogs write about how Intellectual Ventures has amassed one of the largest patent portfolios in existence and is going around to technology companies demanding money to license these patents.

Patents are a big deal in the software industry right now. Lawsuits are proliferating. Big technology companies are spending billions of dollars to buy up huge patent portfolios in order to defend themselves. Computer programmers say patents are hindering innovation.

But people at companies that have been approached by Intellectual Ventures don't want to talk publicly.

"There is a lot of fear about Intellectual Ventures," says Chris Sacca, a venture capitalist who was an early investor in Twitter, among other companies. "You don't want to make yourself a target."

Sacca wouldn't say if Intellectual Ventures had been in contact with any of the companies he's invested in.

"I tried to put you in touch with other people in this community to talk to you about this and they almost uniformly said they couldn't talk to you," Sacca told us. "They were afraid to." IV has the power to "literally obliterate startups," Sacca says.

Not surprisingly, Nathan Myhrvold (pictured above) has a very different story about Intellectual Ventures. When we ask him if IV is a patent troll, he laughs.

"That's a term that has been used by people to mean someone they don't like who owns patents," he says. "I think you'd find almost anyone who stands up to their patent rights has been called a patent troll."

Intellectual Ventures, says Myhrvold, is just the opposite. It's on the side of the inventors. It pays inventors for patents. It gathers patents together into a huge warehouse of inventions that companies can use if they want. It's sort of like a department store for patents: Whatever technology you're looking for, IV has it.

The company even has its own massive lab, with people walking around in white lab coats, mixing chemicals in beakers and looking at stuff under microscopes. There's a machine shop. A nanotechnology section. It's like a playground for scientists and engineers.

IV says it has invented a nuclear technology that's safer and greener than existing technologies. A cooler that can keep vaccines cold for months without electricity. And the world's most high-tech mosquito zapper.

But the lab is a tiny fraction of what IV does. The company has received about 1,000 patents on stuff it's come up with at the lab; it's purchased roughly 30,000 patents from other people. In fact, nothing that's come out of this lab — not the mosquito zapper, not the nuclear technology — has made it into commercial use.

IV, for its part, says its job is to encourage invention, not to bring products to market.

Imagine an inventor out there — someone with a brilliant idea, a breakthrough. This inventor has a patent, but companies are stealing his idea. And this inventor doesn't have the money or legal savvy to stop them. That's where IV comes in. It buys this inventor's patent, and it makes sure that companies who are using the idea pay for it.

When we asked for an example of an inventor in this situation, someone with a breakthrough, who wasn't getting paid for it, two separate people at IV pointed us to a guy named Chris Crawford.

Joe Chernesky, a vice-president at Intellectual Ventures, said:

The neat thing about Chris is he had no idea how to get money for his patents. He had this great idea. These patents were immensely valuable because every technology company was adopting the technology. Yet he didn't know how to get paid. He eventually found Intellectual Ventures. So we bought those patents

So we went to talk to Chris Crawford. But that turned out to be harder than we thought — and it led us on a five month journey, where things did not quite fit the story Intellectual Ventures was telling.

***

When we followed up with IV to get Chris Crawford's contact info, the company told us it no longer owned Chris Crawford's patent. And Crawford probably wouldn't want to talk right now anyway, the company said, because he was in the middle of litigation.

We started digging around and found Chris Crawford in Clearwater, Florida. As predicted, he never responded to our many emails and phone calls. You'll never hear from him in this story. But we were able to locate Chris's patent — number 5771354.

He got it in 1998. And the way IV explained the patent to us, Chris Crawford invented something that we do all the time now: He figured out a way to upgrade the software on your home computer over the Internet. In other words, when you turn on your computer and a little box pops up and says, "Click here to upgrade to the newest version of iTunes," that was Chris Crawford's idea.

But when we looked at the patent, it seemed to claim a lot more than that. The name of the actual invention is "an online back-up system." The patent says this invention makes it possible to connect to an online service provider to do a bunch of stuff — software purchases, online rentals, data back ups, information storage. The patent makes it seem like Chris Crawford invented a lot of the most common things we do on the Internet.

We weren't sure what to make of all this, so we went to see David Martin, who runs a company called M-Cam. It's hired by governments, banks and business to assess patent quality, which the company does with a fancy piece of software. We asked Martin to assess Chris Crawford's patent.

At the same time Crawford's patent was being prosecuted, more than 5,000 other patents were issued for "the same thing," Martin says.

Crawford's patent was for "an online backup system." Another patent from the same time was for "efficiently backing up files using multiple computer systems." Yet another was for "mirroring data in a remote data storage system."

And then there were three different patents with three different patent numbers but that all had the same title: "System and method for backing up computer files over a wide area computer network."

Martin says about 30 percent of U.S. patents are essentially on things that have already been invented. In 2000, for example, the patent office granted a patent on making toast — patent number 6080436, "Bread Refreshing Method."

We also asked Rick Mc Leod, a patent lawyer and former software engineer, to evaluate Chris Crawford's patent.

"None of this was actually new," he told us.

Mc Leod looked to see if anyone else in the field was already doing the thing Chris Crawford claimed to invent in 1993, when he first filed his patent. Here's what he found:

There were institutions, both academic and businesses, that used computers in this way, and I think it's a very interesting collection of things that were well known in the 1980s, with the exception that it adds the word "Internet."

Mc Leod said he didn't think the patent should have been issued in the first place.

***

For a long time, the patent office would have agreed with Rick Mc Leod. For a long time, the patent office was very reluctant to grant patents for software at all.

For decades, the patent office considered software to be like language. A piece of software was more like a book or an article. You could copyright the code, but you couldn't patent the whole idea.

In the 1990s, the Federal courts stepped in and started chipping away at this interpretation. There was a couple big decisions, one in 1994 and another in 1998, which overturned the patent office completely.

A flood of software patents followed. A lot of people in Silicon valley wish that had never happened, including a very surprising group: computer programmers.

"I worked on a whole bunch of patents in my career over the years and I have to say that every single patent is nothing but crap," says Stephan Brunner, a programmer.

Brunner says software patents on his own work don't even make sense to him.

I can't tell you for the hell of it what they're actually supposed to do. The company said we have to do a patent on this. ... Personally, when I look at them, I'm not proud at all. It's just like mungo mumbo jumbo that nobody understands and makes no sense from an engineering standpoint whatsoever.

(For the record, Stephan Brunner has a patent for a "configurator using structure and rules to provide a user interface.")

We met Stephan randomly one afternoon in South Park, a park in San Francisco where lots of tech people eat lunch.

That same afternoon, we talked to a half dozen different software engineers. All of them hated the patent system, and half of them had patents in their names that they felt shouldn't have been granted. In polls, as many as 80 percent of software engineers say the patent system actually hinders innovation. It doesn't encourage them to come up with new ideas and create new products. It actually gets in their way.

Many patents are so broad, engineers say, that everyone's guilty of infringement. This causes huge problems for almost anyone trying to start or grow a business on the Internet.

"We're at a point in the state of intellectual property where existing patents probably cover every behavior that's happening on the Internet or our mobile phones today," says Chris Sacca, the venture capitalist. "[T]he average Silicon Valley start-up or even medium sized company, no matter how truly innovative they are, I have no doubt that aspects of what they're doing violate patents right now. And that's what's fundamentally broken about this system right now."

***

This brings us back to Chris Crawford's patent, the patent Intellectual Ventures cited as an example of how they encourage innovation by ensuring that inventors get paid. As we've said, this patent also seems to cover a big chunk of what happens on the Internet: upgrading software, buying stuff online, and what's called cloud storage. If you have a patent on all that, you could sue a lot of people.

And, in fact, that's what's happening with Chris Crawford's patent. Intellectual Venures sold it to a company called Oasis research in June of 2010. Less than a month later, Oasis Research used the patent to sue over a dozen different tech companies, including Rackspace, GoDaddy, and AT&T.

We called Oasis several times, but no one ever answered the phone. For a while, the company's voice mail message directed all questions to John Desmarais , a lawyer in New York.

He didn't return our phone calls, but we did track him down at an intellectual property conference in San Francisco.

He cited attorney-client privilege, and wouldn't tell us anything — not even who owns Oasis Research. (He did say he's a big fan of NPR.)

There was hardly any public information about Oasis Research. No way to know who owned it, or how many employees it had.

One of the few details that was available was an address: 104 E. Houston street, suite 190, Marshall, Texas.

So we went to Marshall. The door to Oasis's office was locked, and through the crack under the door we could see there were no lights were on inside.

It's kind of a cliche to knock on the door of the empty office. But we'd flown a long way. So we knocked. No one answered.

The office was in a corridor where all the other doors looked exactly the same —locked, nameplates over the door, no light coming out. It was a corridor of silent, empty offices with names like "Software Rights Archive," and "Bulletproof Technology of Texas."

It turns out a lot of those companies in that corridor, maybe every single one of them, is doing exactly what Oasis Research is doing. They appear to have no employees. They are not coming up with new inventions. The companies are in Marshall, Texas because they are filing lawsuits for patent infringement.

Patent lawsuits are big business in Marshall, which is part of the eastern district of Texas.

Many people say that juries in Marshall are friendly to patent owners trying to get a large verdict. A local lawyer who has argued on both sides of numerous patent cases says it's actually because cases go to trial more quickly in Marshall than in other places.

In any case, thousands of lawsuits are filed there, claiming that there's an inventor whose invention is being used without permission. But there are no inventors in Marshall, just corridors of empty offices.

***

We did find one key detail about Oasis Research. It was in a legal document called a Certification of Interested Parties, which lists all the entities with a financial interest in Oasis. Tom Ewing, an intellectual property lawyer who makes a business of tracking IV, brought it to our attention.

The Oasis document lists the usual parties — the plaintiff, the defendants, the attorneys involved. But it also includes one other name: Intellectual Ventures.

Peter Detkin, an attorney who co-founded Intellectual Ventures with Nathan Myhrvold, told us that IV likely has a "back-end arrangement" with Oasis.

In other words, Detkin said, "We sell for some amount of money up front, and we get some percentage of the royalty stream down the road that is generated from these assets."

That means it's likely that Intellectual Ventures is taking a cut of whatever money Oasis gets from its lawsuits. Oasis is a company with no operations, no products, and, as far as we can tell, no employees, that is using a very broad patent from 1998 to sue over a dozen companies.

As it happens, Detkin is the man who coined the term "patent troll." He came up with it back in in 1999, when he was working for Intel.

We asked him how it feels to make money from an entity that's behaving much like the patent trolls he once condemned. He said:

These are patents we used to hold, we no longer hold. And we ensure that we have no control over the actions of these third parties. They are independent actors. They are not Intellectual Ventures. They may be monetizing in ways we disagree with, but it's not our call.

...we believe in our heart that litigation is a highly inefficient way to do licensing. But let's not lose sight that litigation is just licensing by other means.

In other words, we try to license these patents in a friendly way. But sometimes, you have to sue. Detkin then repeated the company line we heard from a lot of people at IV: The mission of Intellectual Ventures is to help inventors bring great ideas into the world.

We asked if he could point us to a patent that was languishing, but then got licensed and built.

"There were two deals that were done," he said. "One was with a toy company. The other was... I can't remember the technology, it was out there last Christmas, but I don't know how it's done."

He continued:

The fact is the bulk of our patents, the bulk of our revenue is from people ... [who] were using it before we bought it, they were using it after we bought it, but we provided an efficient way for them to get access to the invention rights.

This is a good thing, Detkin says, because it means inventors — the people who hold the patents — get paid. This, in turn, creates an incentive for people to come up with new inventions.

But IV is not buying inventions. It's buying patents. And most software engineers will tell you, at least when it comes to software, a patent and an invention are not the same. Lots of patents cover things that people who write software for a living wouldn't consider inventions at all.

***

All the big tech companies have started amassing troves of software patents — not to build anything, but to defend themselves. If a company's patent horde is big enough, it can essentially say to the world, "If you try to sue me with your patents, I'll sue you with mine."

It's mutually assured destruction. But instead of arsenals of nuclear weapons, it's arsenals of patents. And this was a problem Intellectual Ventures founder Nathan Myhrvold said he was trying to solve when he first started the company. A problem that he and others from his company talked about at investor meetings around Silicon Valley. Chris Sacca attended one of those meetings a few years back.

The pitch he heard was, basically, Intellectual Ventures helps defend against lawsuits. Intellectual Ventures has this horde of 35,000 patents — patents that, for a price, companies can use to defend themselves.

Technology companies pay Intellectual Ventures fees ranging "from tens of thousands to the millions and millions of dollars ... to buy themselves insurance that protects them from being sued by any harmful, malevolent outsiders," Sacca says.

There's an implication in IV's pitch, Sacca says: If you don't join us, who knows what'll happen?

He says it reminds him of "a mafia-style shakedown, where someone comes in the front door of your building and says, 'It would be a shame if this place burnt down. I know the neighborhood really well and I can make sure that doesn't happen.' "

Sacca continues:

Here's what's funny: When I've seen Nathan speak publicly about this and when I've seen spokespeople from IV they constantly remind us that they themselves don't bring lawsuits, that they themselves aren't litigators, that they are a defensive player. But the truth is the threat of their patent arsenal can't actually be realized, it can't be taken seriously, unless they have that offensive posture, unless they're willing to assert those patents. And so it's this very delicate balancing act that is quite reminiscent of scenes you see in movies when the mafia comes and visits your butcher shop and they say, "Hey, It would be a real shame if they came and sued you. Tell you what: pay us an exorbitant membership fee into our collective and we'll keep you protected that way." A protection scheme isn't credible if some butcher shops don't burn down now and then.

In an email to us, Peter Detkin called the comparison to the mafia "ridiculous and offensive." Detkin wrote:

We're a disruptive company that's providing a way for patent-holders to recognize value that wasn't available before we came on the scene, and we are making a big impact on the market. That obviously makes people uncomfortable. But no amount of name-calling changes the fact that ideas have value. (See Detkin's full response here.)

True enough. But you can see why many people feel like lots of butcher shops have been burning. As we were reporting this story, more and more Intellectual Ventures patents started showing up in the hands of companies like Oasis, companies without employees or operations, that were formed for the purpose of filing lawsuits. They're known as non-practicing entities, or NPEs.

One former IV patent was used by an NPE to sue 19 different companies, a broad assortment that included Dell, Abercrombie & Fitch, Visa, and UPS.

These companies all have websites where, when you scroll your mouse over certain sections, pop-up boxes appear. The NPE said, "We have the patent on that." Which would make pretty much the entire Internet guilty of infringing the patent.

Another group of former IV patents is being used in one of the most controversial and talked about cases in Silicon Valley right now. An NPE called Lodsys is suing roughly three dozen companies developing apps for the iPhone and for Android phones. Lodsys says it owns the patent on buying things from within a smartphone app.

One interesting wrinkle about that case: The address for Lodsys is 104 E. Houston street, Marshall Texas, suite 190. The same exact address, down to the suite number, as Oasis Research.

***

For this story, we called people who had licensing arrangements with IV, we called people who were defendants in lawsuits involving IV patents, we called every single company being sued by Oasis Research. No one would talk to us.

Part of this is probably fear. Part of it is the fact that agreements with Intellectual Ventures include a non-disclosure agreement that's rumored to be the strictest in Silicon Valley.

The Oasis Research case is still ongoing, but many of the original defendants seem to have settled.

Michael Smith, the attorney in Marshall, Texas, represented one of those defendants. He was pretty sure they would have won the case if they'd gone to trial. But his client settled anyway. He says sometimes it makes more sense to settle and pay a license fee than to spend $2 million to $5 million on a court case.

Tom Ewing, the lawyer who tracks Intellectual Ventures, says it's likely we'll see plenty more of these cases in the future. In order to purchase its 35,000 patents, Intellectual Ventures raised more than $5 billion from investors.

Since its founding in 2000, Intellectual Ventures has generated $2 billion in revenue. But to keep its investors happy over the next 10 years, Ewing says, it's going to have to do a lot better than that:

"Intellectual Ventures seems to have signed a number of deals," Ewing says. "If the stream of deals they're signing doesn't increase significantly, I imagine they would be forced to file more litigation, in order to achieve their revenue targets."

Ewing's prediction already seems to be coming true. Earlier this month, Intellectual Ventures itself filed a lawsuit in federal court against several companies it claimed were infringing some semiconductor patents it owns.

***

In early July, the bankrupt tech company Nortel put its 6,000 patents up for auction as part of a liquidation. A bidding war broke out among Silicon Valley powerhouses. Google said it wanted the patents purely to defend against lawsuits and it was willing to spend over $3 billion to get them. That wasn't enough, though.

The portfolio eventually sold to Apple and a consortium of other tech companies including Microsoft and Ericsson. The price tag: $4.5 billion dollars. Five times the opening bid. More than double what most people involved were expecting. The largest patent auction in history.

That's $4.5 billion on patents that these companies almost certainly don't want for their technical secrets. That $4.5 billion won't build anything new, won't bring new products to the shelves, won't open up new factories that can hire people who need jobs. That's $4.5 billion dollars that adds to the price of every product these companies sell you. That's $4.5 billion dollars buying arms for an ongoing patent war.

The big companies — Google, Apple, Microsoft — will probably survive. The likely casualties are the companies out there now that no one's ever heard of that could one day take their place.

from Gizmodo, 2011-Jul-20, by Mat Honan:

This Is Where the Patent Trolls Live

This American Life had an amazing story this past weekend about patent trolls. It was pegged to Intellectual Ventures, and various others who litigate rather than innovate. But the real patent trolls are being traded on the NYSE.

As This American Life reports, from 2004 to 2009 patent infringement lawsuits rose 70 percent while licensing fee requests went up by 650 percent. The system is broken. And it's got to be fixed before it kills everyone in the business of making something new.

To make that happen, we need to get the big players in the patent system on board. Sadly, right now they're part of the problem.

Software patents are often flim-flam, won almost by lottery, that benefit no one other than lawyers and shakedown artists. Take Lodsys, for example, the company hammering iOS developers over patent number 7,222,078. Here's its abstract:

"In an exemplary system, information is received at a central location from different units of a commodity. The information is generated from two-way local interactions between users of the different units of the commodity and a user interface in the different units of the commodity. The interactions elicit from respective users their perceptions of the commodity."

It's utterly ridiculous. There is nothing non-obvious or novel about the patent it is seeking to enforce. Anyone who finds it innovative is naive, intellectually dishonest, or, sadly, a patent examiner at the USPTO.

Like many software patents, it's essentially several hundred words of typo-riddled gibberish, much of which might as well be lorem ipsum text. And yet, it passed. So now this patent, which mostly talks about market research, is being used to shakedown iOS developers for in-app purchases.

The epicenter of this slow death of American invention is Marshall, Texas. Marshall is the town Technology Review called "a haven for patent pirates." Many offices there are, effectively, mail drops established for the purpose of filing lawsuits. The Lodsys office is nary a block from the U.S. District Court for the Eastern District of Texas.

The courthouse itself looks bucolic in this Google streetview map, with rays of sunlight arcing over its roofs. Until you realize that the light is coming from the West, and what you are looking at is the sunset of American innovation.

A Nexis search of 104 E. Houston Street, the building where Lodsys and Oasis Research, LLC (a company profiled in the This American Life report) are headquartered, reveals suite upon suite of patent trolls and weasels. Companies like Software Rights Archive LLC, whose Google footprint is basically a history of lawsuits.

These are the tapeworms crawling through the nutrient-rich belly of American innovation, full of bile and shit, slowly starving us to death.

104 E. Houston also houses a hive of lawyers, the kind who can file a multi-thousand word lawsuit but can't even bothered to take the dummy text off their websites. Others, who aren't actually headquartered there, brag of their Marshall office—because it is "blessed with outstanding judges who employ a "fast track" docket system for resolving disputes quickly and efficiently."

Yes. A true blessing for us all.

But the thing is, the problem isn't Lodsys or Innovation Solutions or even the litigation-prone attorneys. They're just taking advantage of a broken system. The problem is driven by the ones who perpetuate it. It's Apple. It's Microsoft. It's Sony. It's Samsung. It's HTC. It's Google.

Instead of spending obscene fortunes stockpiling patents or suing the shit out of each other at every available opportunity, these large companies that depend on innovation could actually do something constructive for society.

If the biggest players in technology and the American economy tell Washington to write a bill, it gets written. The Patent Reform Act, that passed the House in June—which awards patents to the first applicant, not the first inventor—is basically the exact opposite of what patent reform should look like. It needs to be harder to get a patent issued. The patent re-examination process needs to be more vigorous. And it needs to be easier for small players to participate. If the Apple-Microsoft-Rim-Sony consortium spent a fraction of the $4.5 billion it plunked down for the Nortel patent portfolio on lobbying, we'd have very different patent laws. And we need them desperately.

It wasn't always like this. Even as recently as 20 years ago we had a better patent system. We need to totally overhaul it now, so that patents once again foster innovation, rather than prevent it.

As Marco Ament noted, perhaps it's a good thing that Google didn't win the Nortel patent portfolio, because not owning a trove of patents could motivate the company to challenge the system. Until that happens, until large corporations fight to fix the status quo instead of lawyering up and buying every patent on the market, they're the problem, and they're the ones we should be focusing our outrage on.

Raging against Lodsys and Oasis Research and Software Rights Archive and even Innovation Solutions feels good, but is ultimately useless. They're lampreys. Yeah, we should be rid of them. But the only way to do that is to get rid of all the sharks.

from the International Business Times, 2011-Aug-17, by Jay Akasie:

U.A.E. Slaps Severe Limits on Social Networking

The United Arab Emirates is enforcing a law that can slap a 10-year prison sentence on anyone it thinks is spreading rumors through social media outlets.

The Peninsula, an English-language newspaper in the nearby Persian Gulf country of Qatar, reports that social networking sites in the region are heating up with debates arguing if such a law is needed and if more Gulf countries should follow suit.

The U.A.E., which includes the glitzy city of Dubai, has banned the use of the Internet, Twitter and Facebook and as well as gadgets such as the BlackBerry for spreading rumors and propaganda. The U.A.E. put five bloggers on trial because they called for democratic reforms there during the Arab Spring uprisings.

The director of organized crime-combating unit of Dubai Police, Abdul Rahim Shafei, told local media that law enforcement agencies will deal strictly with people who use social media forums or technologies to spread "baseless rumors" and hurl insults at the members of the royal family or senior bureaucrats.

The tiny Gulf country, home to a vast expat population of South Asians and Westerners, becomes the first member-state of the Gulf Cooperation Council to implement a law to curb what analysts describe is Internet activism, according to The Peninsula. Most social network commentators said free expression through the Internet trumps rumor-mongering.

"Media reports about the U.A.E. law have, though, evoked mixed reactions in Qatar with many commentators writing on social networking sites that rumor-mongering must be dealt with strictly. But there were others who said that although spreading rumors should be discouraged, it is important to have free expression on social media," according to The Peninsula.

Outside the Middle East, China has been among the first countries to have to clamp down on Internet activism. When the Web population in that country crossed the 400 million-mark, China enforced an anti-rumor mongering law, according to The Peninsula.

from the Guardian of London, 2011-Aug-11, by Josh Halliday and Juliette Garside:

Rioting leads to Cameron call for social media clampdown
Role of Facebook, Twitter and BlackBerrys in UK violence to be examined by home secretary Theresa May

Facebook has responded to David Cameron's calls for a clampdown on social networking sites by saying it has already actively removed several "credible threats of violence" related to the riots across England.

The prime minister told parliament on Thursday that Facebook, Twitter and Research in Motion (Rim), the maker of BlackBerry devices, should take more responsibility for content posted on their networks, warning the government would look to ban people from major social networks if they were suspected of inciting violence online.

The home secretary, Theresa May, is to hold meetings with the three companies within weeks.

The police have promised to track down those suspected of inciting the violence on Twitter, but much of the planning for the disturbances took place in the relatively private world of the BlackBerry Messenger service.

A Facebook spokeswoman said: "We look forward to meeting with the home secretary to explain the measures we have been taking to ensure that Facebook is a safe and positive platform for people in the UK at this challenging time.

"In recent days, we have ensured any credible threats of violence are removed from Facebook and we have been pleased to see the very positive uses millions of people have been making of our service to let friends and family know they are safe and to strengthen their communities."

Mike Conradi, partner and telecoms specialist at the London law firm DLA Piper, said that emergency measures to stop rioters communicating on social media sites would require legislation and threaten free speech.

Conradi said: "What David Cameron appears to be wanting is a police power to trawl through millions of messages – ideally in real time – to prevent possible criminal activity. I don't believe that any such power exists and nor would I want there to be one. Parliament would have to pass new legislation and I would certainly warn against that. That gets the balance wrong in terms of free speech and security.It would certainly put the UK in a difficult position in terms of talking to authoritarian regimes and trying to convince them not to turn off their networks."

Current powers allow Rim and others to identify people who may be worth further investigation and potential prosecution without looking at the contents of their messages.

Cameron's move to curb social media was backed by the opposition. Ivan Lewis, the shadow culture secretary, said: "Free speech is central to our democracy but so is public safety and security. We support the government's decision to undertake a review of whether measures are necessary to prevent the abuse of social media by those who organise and participate in criminal activities."

The only organisation which regularly removes illegal content from websites within hours of its discovery is the Internet Watch Foundation, which combats images of child abuse. Funded by internet service providers, mobile operators and other web businesses, it has no legal powers. Any co-operation is voluntary.

It uses "notice and take down procedures", which have been widely adopted in the US and Europe to protect internet publishers from being held liable for hosting illegally copied material. Most websites, if contacted with a complaint about their content, take down the material.

Efforts to control messaging during riots are likely to focus on social media rather than mobile phone companies, because there is no simple procedure for police to cut off individual phones at short notice.

Vodafone Group communications director Matt Peacock said: "It is not possible to cut off access to an individual subscriber if the police don't even know who that person is, as would seem highly likely in the middle of a riot with hundreds of masked youths running around the streets.

"In any case, the police must follow a legal process in order to require operators to disclose individual subscriber information. It's an important process, designed to protect customers' privacy, and it's proven and robust. However, it isn't designed to operate in the context of this kind of fast-moving and highly volatile civil disorder."

Powers do exist in the UK and most other countries to order the shut down of entire networks or individual base stations, blocking all traffic in a particular area. These are seen as a last resort.

Vodafone and other carriers were widely criticised for shutting their Egyptian networks during anti-government demonstrations.

from CNET News, 2011-Jul-7, by Greg Sandoval:

Top ISPs agree to become copyright cops

Some of the top ISPs, including Comcast, Cablevision, Verizon, and Time Warner Cable, have officially agreed to step up efforts to protect the rights of copyright owners, a move first reported last month by CNET.

"Leaders from the movie, television, music and Internet service provider communities today announced a landmark agreement on a common framework for 'Copyright Alerts,'" the parties said today in a statement. Copyright Alerts "will educate and notify Internet subscribers when their Internet service accounts possibly are being misused for online content theft. This voluntary landmark collaboration will educate subscribers about content theft on their Internet accounts, benefiting consumers and copyright holders alike."

Many file-sharing fans and proponents of free content are to sure mock the assertion that this is a benefit to them.

This agreement hands the music and film sectors a big new stick with which to fight online illegal downloading of copyrighted works. The deal doesn't affect illegal streaming services. The film, music, and software sectors claim that online piracy costs the U.S. economy billions in lost revenue and jobs.

The Recording Industry Association of America (RIAA) and Motion Picture Association of America (MPAA), the respective trade groups for the four major record companies and six top Hollywood film studios, have labored for years to persuade ISPs to take a tougher antipiracy position. The RIAA, led by CEO Mitch Bainwol, said in December 2008 that the group would cease filing lawsuits against individual file sharers and would instead enlist the help of the large bandwidth providers. These companies are recognized as some of the Web's most powerful gatekeepers. It took nearly three years to convince the ISPs to agree.

The new system of enforcement looks a lot like the old system. The ISPs send out a series of notifications and warnings--which many ISPs have done for years--to someone suspected of illegally downloading films and music. What is new is that if the warnings are ignored, then the ISPs will eventually implement a series of tougher measures.

Those suspected of chronic abuse of copyright laws will face penalties. Multiple warnings are supposed to be followed up by one of several responses that ISPs can choose from, such as throttling down an accused user's Web-connection speed to blocking them from surfing the Web altogether.

"These Mitigation Measures may include, for example: temporary reductions of Internet speeds, redirection to a landing page until the subscriber contacts the ISP to discuss the matter or reviews and responds to some educational information about copyright," the parties said in a statement.

It's obvious that the ISPs wanted to move deeper into copyright protection as gingerly as they could to avoid alienating young customers. But this new system of "mitigation" is just lipstick on the "graduated response" policy that the entertainment companies have pushed for years.

"Consumers have a right to know if their broadband account is being used for illegal online content theft, or if their own online activity infringes on copyright rules...so that they can correct that activity," said James Assey, vice president of the National Cable & Telecommunications Association, a trade group that represents ISPs. "We are confident that, once informed that content theft is taking place on their accounts, the great majority of broadband subscribers will take steps to stop it."

ISPs had balked at adopting a graduated response plan for years. But last month, CNET reported that the White House was instrumental in encouraging the parties to reach an agreement, sources with knowledge of the talks said at the time. President Obama has said intellectual property is important to the country's economy and has vowed to step up the fight against piracy and counterfeiting.

His administration has lobbied Congress for the past several years to pass new pro-copyright legislation while instructing federal law enforcement to make antipiracy a priority.

from the Wall Street Journal, 2011-Mar-28, by Paul Sonne and Steve Stecklow, with Marc Champion, Christopher Rhoads, Nicholas Casey and Loretta Chao contributing:

U.S. Products Help Block Mideast Web

As Middle East regimes try to stifle dissent by censoring the Internet, the U.S. faces an uncomfortable reality: American companies provide much of the technology used to block websites.

McAfee Inc., acquired last month by Intel Corp., has provided content-filtering software used by Internet-service providers in Bahrain, Saudi Arabia and Kuwait, according to interviews with buyers and a regional reseller. Blue Coat Systems Inc. of Sunnyvale, Calif., has sold hardware and technology in Bahrain, the United Arab Emirates and Qatar that has been used in conjunction with McAfee's Web-filtering software and sometimes to block websites on its own, according to interviews with people working at or with ISPs in the region.

A regulator in Bahrain, which uses McAfee's SmartFilter product, says the government is planning to switch soon to technology from U.S.-based Palo Alto Networks Inc. It promises to give Bahrain more blocking options and make it harder for people to circumvent censoring.

Netsweeper Inc. of Canada has landed deals in the UAE, Qatar and Yemen, according to a company document.

Websense Inc. of San Diego, Calif., has a policy that states it "does not sell to governments or Internet Service Providers (ISPs) that are engaged in government-imposed censorship." But it has sold its Web-filtering technology in Yemen, where it has been used to block online tools that let people disguise their identities from government monitors, according to Harvard University and University of Toronto researchers.

Websense's general counsel said in a 2009 statement about the incident: "On rare occasion things can slip through the cracks."

Web-filtering technology has roots in the 1990s, when U.S. companies, schools and libraries sought to prevent people from surfing porn, among other things.

Today, that U.S. technology is now among the tools used in the clampdowns on uprisings across the Middle East. In Egypt, Syria, Tunisia and elsewhere, bloggers have been jailed and even beaten as governments try to repress online expression.

In Bahrain, Nabeel Rajab, head of the banned Bahrain Human Rights Center, which runs a website the government blocks, says he was briefly thrown in a car and roughed up after authorities raided his house last week. The men threatened him with a pipe, he says, and slapped him when he refused to say he loved Bahrain's king and prime minister.

For the U.S., the role of Western companies in Internet censorship poses a dilemma. In a speech last year, Secretary of State Hillary Rodham Clinton said, "Censorship should not be in any way accepted by any company from anywhere. And in America, American companies need to take a principled stand."

Lately the State Department has spent more than $20 million to fund software and technologies that help people in the Middle East circumvent Internet censorship that is sustained by Western technology.

Asked about that policy, a senior State Department official said the U.S. is responding to "a problem caused by governments abusing U.S. products." When governments repurpose U.S.-made tools "to filter for political purposes, we are involved in producing and distributing software to get around those efforts."

A Bahrain official defended censorship. "The culture that we have in the Middle East is much more conservative than in the U.S.," says Ahmed Aldoseri, director of information and communication technologies at the Telecommunications Regulatory Authority.

Freedom of speech is guaranteed in Bahrain, Mr. Aldoseri says, "as long as it remains within general politeness."

Makers of Web-filtering technology say they can't control how customers use their products. "You can add additional websites to the block list," says Joris Evers, a McAfee spokesman. "Obviously what an individual customer would do with a product once they acquire it is beyond our control." A spokesman for Blue Coat made similar points.

There are no special export restrictions on Web-filtering technology. Anti-censorship advocates say there needs to be a way for companies to track how their filtering software is used.

"They could build into the software something that signals and, in fact, sends back to them exactly what kind of filtering is taking place," says Jonathan Zittrain, a professor of law and computer science at Harvard Law School. "There's no rocket science there, it's just their customer wouldn't like it."

Web-blocking companies declined to name their Middle Eastern customers, but The Wall Street Journal identified a number of them through interviews with ISPs, a reseller and former employees. In addition, OpenNet Initiative, made up of Harvard and University of Toronto researchers who study Internet filtering, identified three ISPs in Yemen, Qatar and the UAE that were using Netsweeper in January. ISPs provide Internet access to households and companies.

A Netsweeper official said the company doesn't comment on its clients.

According to a forthcoming report from OpenNet, ISPs in at least nine Middle East and North African countries have used "Western-made tools for the purpose of blocking social and political content, effectively blocking a total of over 20 million Internet users from accessing such websites."

Employees at ISPs in the Middle East said in interviews that government ministries give them databases of Internet addresses, including, at times, antigovernment sites, for blocking and that they must comply. The number of requests varies by country.

Mishary Al-Faris, quality assurance manager at Qualitynet in Kuwait, says his ISP, which uses SmartFilter, receives several requests a year from the government to block content deemed religiously offensive. "It's kind of a gentlemanly understanding: 'We're going to honor your requests,'" he says.

Web-filtering isn't exclusively a tool of Internet censorship. As companies like McAfee, Blue Coat and Netsweeper note, their technology can prevent youngsters from encountering pornography and protect ISPs from malicious cyber attacks.

In recent years, American companies aggressively have sought new customers abroad.The global Web-security market, including filtering, was valued at $1.8 billion in 2010, according to Phil Hochmuth of market-research firm IDC. The Middle East and Africa accounted for about $46 million and is growing at about 16% a year, he says.

China is considered the king of Web filtering, with its elaborate censorship system dubbed the "Great Firewall." China's technology remains unclear but its reach is vast: Local Chinese sites must be licensed and are required to remove any content the government deems objectionable. In addition, some major foreign sites, including Facebook, Twitter and Google Inc.'s YouTube, have been blocked for more than a year.

Middle East Web blocking has some differences. Government licenses for websites typically aren't required. Another difference: In the Middle East the ISP will generally show an explicit notice saying a site has been blocked, whereas in China it is often unclear why a site becomes inaccessible.

Blocking websites can be done with hardware, specialized software or a combination of the two. On a basic level, Web filtering works this way: First, a list is built that groups websites into categories such as "gambling," "dating" or "violence." Netsweeper says it has categorized more than 3.8 billion Web addresses and adds 15 million a day. Then, a user of the software can use that list to block access to specific sites or categories.

Companies like Websense and Netsweeper can now scan and categorize the content of an uncategorized page in real time. They can also block pieces of a site, rather than whole pages, if only a certain image or text is considered objectionable.

The use of filtering to block websites could be seen this month in Bahrain, where a group of mostly Shia protesters took aim at the country's Sunni ruling family and met a violent crackdown. Batelco, Bahrain's main ISP, filters the Web using McAfee SmartFilter software and Blue Coat technology, according to Ali AbuRomman, who works on the network team. He says the government regularly uploads lists of websites to block, including some political sites, to the country's ISPs.

In a test on a Batelco connection in Bahrain in recent days, The Wall Street Journal found that online-community forums for Shia villages and the websites of at least two human-rights groups were censored.

"Site blocked," the screen read in English and Arabic when a Journal reporter tried to view the sites. "This website has been blocked for violating regulations and laws of Kingdom of Bahrain."

Since 2009, Bahrain has had the power to order the blocking of websites for "transgressing local values and impairing national unity," according to the U.S. State Department.

Also blocked during the Journal test was Malkiya.net, a news site and discussion forum for Malkiya, a mostly Shia fishing town that has seen antigovernment protests in recent years. Its owner, Ali Mansoor Abbas, says the site also was blocked after it covered protests over the seizure of part of a local beach by a cousin of Bahrain's king.

Mr. Aldoseri, the Bahrainian telecom official, says his country plans to switch in the next few months from SmartFilter to technology from Palo Alto Networks. It can block activities within websites, like video or photo uploading, or Internet tools that let users bypass blocking altogether, which are illegal in Bahrain.

Middle East Web filtering has sparked a cat-and-mouse game to outfox the censors. Website owners like Mr. Abbas of Malkiya.net sometimes create "mirror" sites, with slightly different names.

Walid Al-Saqaf, a graduate student and former journalist from Yemen who now lives in Sweden, engineered his own circumvention tool after his news-aggregation site, YemenPortal.net, which included antigovernment content, was blocked by the country's filters. Known as Alkasir, the Arabic word for "circumventor," his free program has attracted at least 16,000 users in Yemen, China, Iran and elsewhere, he says.

Two years ago, OpenNet Initiative researchers found that Yemen was using filtering software from Websense to block privacy tools. In response, the company said it stopped providing the ISPs involved with its latest website-block lists since the ISPs violated its anticensorship policy.

The new OpenNet report says Websense tools and services appeared to still be used in Yemen as recently as August. The company declined to comment. The report also found that in January, new filtering software was being used in Yemen from Canadian firm Netsweeper.

"Filtering decisions are made by the entity that decides to filter," says Scott O'Neill, Netsweeper's director of sales and marketing. "Much as Ford Motor Co. can't decide how [its customers] are going to drive their cars."

An informational company document says telecom companies can use Netsweeper to "block inappropriate content using [a] pre-established list of 90+ categories to meet government rules and regulations—based on social, religious or political ideals."

Emirates Integrated Telecommunications Co., or Du, one of the UAE's main ISPs, decided last year to switch to Netsweeper from the filtering system it had been using with Blue Coat devices, says Abul Hasan Jafery, a technical consultant who helped implement Netsweeper's filtering system there.

"We block malware, alternative lifestyles, profanity," says Mr. Jafery. "If something is offensive to the religion, we block it."

Until recently, Tunisia had some of the most pervasive Internet filtering in the world, according to OpenNet. Then, a January popular revolt forced the resignation of the country's president—triggering the wave of protests that have spread across the Middle East.

Tunisia has since pulled the plug on its Web-blocking gear. The new head of the Tunisian Internet Agency, Moez Chakchouk, says he was astounded when he recently visited a secured room at the state telephone company where the filtering equipment was kept.

The room was full of unfamiliar gear, says the 36-year-old computer engineer, who took the job last month. "I don't know" what it all does, he says. Mr. Chakchouk says the Interior Ministry controlled the filtering equipment since 2004, and the entire country's Internet traffic flowed through it.

For several years, according to Mr. Chakchouk, the Tunisian government used SmartFilter, which McAfee acquired in 2008. The McAfee spokesman confirmed the product has been sold in Tunisia, but declined to disclose its customers.

For better or worse, says Mr. Chakchouk, part of the legacy of Tunisia's former regime has been to leave Tunisia with some of the most sophisticated Internet-filtering equipment in the world. "I had a group of international experts from a group here lately, who looked at the equipment and said: 'The Chinese could come here and learn from you.'"

from Bloomberg, 2011-Aug-11, by Amy Thomson and Robert Hutton, with editing by Kenneth Wong:

U.K. May Block Twitter, BlackBerry Services in Future Riots

London -- David Cameron, the U.K. prime minister, said the government is considering whether it should block social-networking websites and messaging services during violent unrest after the country's worst riots since the 1980s.

The government is working with police, the intelligence services and companies to look at “whether it would be right to stop people communicating via these websites and services when we know they are plotting violence, disorder and criminality,” Cameron said today in parliament. He mentioned Research In Motion Ltd. (RIM)'s BlackBerry Messenger service as one of the tools that were used by rioters.

Police have said they are investigating the use of social- networking services such as those operated by Twitter Inc., Facebook Inc. and BlackBerry Messenger. Three people were arrested by police in Southampton, England, on suspicion of using social media and messaging to encourage rioting.

“If you try to stop people communicating, you create more of a problem,” said Jim Killock, executive director of the Open Rights Group, an organization promoting freedom of expression on the Internet. “People are angry because their freedoms are threatened.”

RIM “welcomes the opportunity for consultation” with the British government and other technology companies, according to an e-mailed statement. RIM, based in Waterloo, Ontario, also said it continues to respect both U.K. privacy laws and the Regulation of Investigatory Powers Act, which allows police to gather encrypted information that might otherwise be private as part of an investigation. Twitter spokespeople couldn't immediately be reached.

Temptations

Tactics such as blocking social networks invite comparisons with toppled Egyptian President Hosni Mubarak, said Daniel Hamilton, director of Big Brother Watch, a civil liberties group that argues for privacy and the reduction of government monitoring. The U.K. government must “avoid the temptation to engage in populist authoritarianism,” in response to the riots.

All social media will be reviewed, Cameron's spokesman Steve Field told reporters. The government is still investigating how useful and practical blocking the websites and services would be and hasn't reached any conclusion, he said.

More than 1,300 people have been arrested in the U.K. since the disorder began on Aug. 6, with 888 of those in London.

“Free flow of information can be used for good, but it can also be used for ill,” Cameron said today. “When people are using social media for violence, we need to stop them.”

from the Washington Examiner, 2011-Jun-21, by Michael Barone:

Feds crack down on campus flirting and sex jokes

When I was growing up it was widely believed that colleges and universities were the part of our society with the widest scope for free expression and free speech. In the conformist America of the 1950s, the thinking ran, few people dared to say anything that went beyond a broad consensus. But on campus anyone could say anything he liked.

Today we live in an America with enormous cultural variety in which very few things are considered universally verboten. But on campus it's different. There saying something considerably milder than some of the double entrendres you heard in cable news coverage of the Anthony Weiner scandal can get you into big trouble.

These reflections are inspired by a seemingly innocuous 19-page letter on April 4 from the Department of Education's Office of Civil Rights to colleges and universities. The letter was given prominence by Greg Lukianoff, president of the Foundation for Individual Rights in Education, which has done yeoman work opposing restrictive speech codes issued by colleges and universities.

OCR's letter carries great weight since there are few things a university president fears more than an OCR investigation, which can lead to loss of federal funds -- which amount to billions of dollars in some cases.

The OCR letter includes a requirement that universities adopt a "preponderance of the evidence" standard of proof for deciding cases of sexual harassment and sexual assault. In other words, in every case of alleged sexual harassment or sexual assault, a disciplinary board must decide on the basis of more likely than not.

That's far short of the requirement in criminal law that charges must be proved beyond a reasonable doubt. And these disciplinary proceedings sometimes involve charges that could also be criminal, as in cases of alleged rape.

But more often they involve alleged offenses defined in vague terms and depending often on subjective factors. Lukianoff notes that campus definitions of sexual harassment include "humor and jokes about sex in general that make someone feel uncomfortable" (University of California at Berkeley), "unwelcome sexual flirtations and inappropriate put-downs of individual persons or classes of people" (Iowa State University) or "elevator eyes" (Murray State University in Kentucky).

All of which means that just about any student can be hauled before a disciplinary committee. Jokes about sex will almost always make someone uncomfortable, after all, and usually you can't be sure if flirting will be welcome except after the fact. And how do you define "elevator eyes"?

Given the prevailing attitudes among faculty and university administrators, it's not hard to guess who will be the target of most such proceedings. You only have to remember how rapidly and readily top administrators and dozens of faculty members were ready to castigate as guilty of rape the Duke lacrosse players who, as North Carolina Attorney General Roy Cooper concluded, were absolutely innocent.

What the seemingly misnamed Office of Civil Rights is doing here is demanding the setting up of kangaroo courts and the dispensing of what I would call marsupial justice against students who are disfavored by campus denizens because of their gender or race or political attitude. "Alice in Wonderland's" Red Queen would approve.

As Lukianoff points out, OCR had other options. The Supreme Court in a 1999 case defined sexual harassment as conduct "so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims' educational experience, that the victim-students are effectively denied equal access to an institution's resources and opportunities." In other words, more than a couple of tasteless jokes or a moment of elevator eyes.

Lukianoff and FIRE have an admirable record of defending students' and faculty members' free speech regardless of their point of view, but anyone familiar with their work knows that the most frequent targets of campus disciplinary groups are male, conservative, religious or some combination thereof.

I wonder whether there is some connection between this and the dwindling percentage of men who enroll in and graduate from college. Are we allowing -- and encouraging -- our university administrators to create an atmosphere so unwelcoming and hostile to males that we are missing out on the contributions they could make with a college or graduate degree?

Education Secretary Arne Duncan has shown an admirable openness to argument and intellectual debate. Perhaps someone will ask him whether he wants his department to be encouraging kangaroo courts and marsupial justice on campuses across the country.

from Volokh.com, 2011-Jun-6, by Eugene Volokh:

Crime to Post Images That Cause “Emotional Distress” “Without Legitimate Purpose”

Friday, a new Tennessee law was changed to provide (new material italicized):

(a) A person commits an offense who intentionally:

(4) Communicates with another person or transmits or displays an image in a manner in which there is a reasonable expectation that the image will be viewed by the victim by [by telephone, in writing or by electronic communication] without legitimate purpose:

(A) (i) With the malicious intent to frighten, intimidate or cause emotional distress; or

(ii) In a manner the defendant knows, or reasonably should know, would frighten, intimidate or cause emotional distress to a similarly situated person of reasonable sensibilities; and

(B) As the result of the communication, the person is frightened, intimidated or emotionally distressed.

So the law now applies not just to one-to-one communication, but to people's posting images on their own Facebook pages, on their Web sites, and in other places if (1) they are acting “without legitimate purpose,” (2) they cause emotional distress, and (3) they intend to cause emotional distress or know or reasonably should know that their action will cause emotional distress to a similarly situated person of reasonable sensibilities. So,

1. If you're posting a picture of someone in an embarrassing situation — not at all limited to, say, sexually themed pictures or illegally taken pictures — you're likely a criminal unless the prosecutor, judge, or jury concludes that you had a “legitimate purpose.”
2. Likewise, if you post an image intended to distress some religious, political, ethnic, racial, etc. group, you too can be sent to jail if governments decisionmaker thinks your purpose wasn't “legitimate.” Nothing in the law requires that the picture be of the “victim,” only that it be distressing to the “victim.”
3. The same is true even if you didn't intend to distress those people, but reasonably should have known that the material — say, pictures of Mohammed, or blasphemous jokes about Jesus Christ, or harsh cartoon insults of some political group — would “cause emotional distress to a similarly situated person of reasonable sensibilities.”
4. And of course the same would apply if a newspaper or TV station posts embarrassing pictures or blasphemous images on its site.

Pretty clearly unconstitutional, it seems to me.

from the Washington Examiner online, 2011-Jun-27, by Conn Carroll:

Supreme Court overturns Arizona campaign finance law

In a 5-4 decision, the Supreme Court held Monday that Arizona's public-financing election law violated the First Amendment. The Justices split along ideological lines with Chief Justice John Roberts authoring a majority opinion joined by Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Sam Alito. Justice Elena Kagan authored the dissenting opinion and was joined by Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor.

Under the Arizona law, candidates who agreed to certain campaign spending restrictions were eligible for an initial grant of tax payer money to run their campaigns. Publicly-funded candidates were also granted additional dollar-for-dollar matching funds if they were outspent by a privately-financed rival, or an outside group. Matching funds topped out at two times the initial grant.

The majority found that the Supreme Court's 2008 Davis v. Federal Election Commission decision, invalidating the “Millionaire's Amendment” of the McCain-Feingold campaign finance law, dictated the decision in the Arizona case. In Davis, the Court held that the McCain-Feingold law, which permitted candidates whose opponents spent more than $350,000 in personal funds to collect triple the federal contribution limit, unconstitutionally forced a candidate “to choose between the First Amendment right to engage in unfettered political speech and subjection to discriminatory fundraising limitations.”

The majority acknowledged that while the Arizona law was distinguishable from the McCain-Feingold law, the differences only made the First Amendment violation worse. First, while McCain-Feingold only altered campaign contribution limits, the Arizona law directly gave the publicly-financed candidate funds. Second, the possibility of multiple publicly-financed candidates in a single race made the privately financed candidate's punishment even worse. Finally, the Arizona law also covered expenditures of outside groups meaning that privately-funded candidates could not even control whether or not publicly-funded candidates qualified for more money.

In dissent, Justice Kagan writes: "The First Amendment's core purpose is to foster a healthy, vibrant political system full of robeust discussion and debate. Nothing in Arizona's anti-corruption statute ... violates this constitutional protection."

from CNET News, 2011-Jun-27, by Declan McCullagh:

Supreme Court nixes violent video game law

In a ringing endorsement of free speech and new technology, the U.S. Supreme Court this morning struck down a California law that restricts the sale or rental of violent video games to minors.

"Even where the protection of children is the object, the constitutional limits on governmental action apply," Justice Antonin Scalia wrote in the majority opinion (PDF). The ruling was 7-2.

The Supreme Court's ruling unambiguously reaffirms that video games, which have become increasingly complex and in some cases more expensive to produce than movies, also qualify for full First Amendment protection.

Scalia noted that books often viewed as suitable for high school students are full of violent material. "Certainly the books we give children to read--or read to them when they are younger--contain no shortage of gore: Grimm's Fairy Tales, for example, are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers 'till she fell dead on the floor, a sad example of envy and jealousy.'"

The Entertainment Software Association, which represents the U.S. computer and video game industry, welcomed the ruling.

"Today, the Supreme Court affirmed what we have always known--that free speech protections apply every bit as much to video games as they do to other forms of creative expression like books, movies and music," said Michael D. Gallagher, ESA's president and CEO of the ESA, in a statement. "The Court declared forcefully that content-based restrictions on games are unconstitutional; and that parents, not government bureaucrats, have the right to decide what is appropriate for their children."

California is one of a string of states that enacted similar laws restricting minors' rights to buy violent video games--legislation that has been repeatedly rejected by lower courts. Laws in Illinois and Michigan were blocked by federal judges on First Amendment grounds in 2005, and earlier laws in Indianapolis and Missouri's St. Louis County were also shot down.

Although California's law doesn't target a specific game by name, government lawyers did single out Postal 2, which allows players to go on murderous rampages, by name. And the Federal Trade Commission has previously targeted the makers of Grand Theft Auto: San Andreas for having sexually explicit content.

The California law slaps anyone who sells or rents a "violent video game" to a minor with a $1,000 fine. That was defined as a game in which the player has the option of "killing, maiming, dismembering, or sexually assaulting an image of a human being" in offensive ways. Parents or guardians are still permitted to buy those games for minors.

Then-California Gov. Arnold Schwarzenegger signed the video game law in October 2005, but a federal judge blocked it from taking effect a few months later. The U.S. Ninth Circuit Court of Appeals upheld that decision.

In May 2009, the state of California asked the Supreme Court to overturn those decisions, saying they were incorrectly decided.

"Like other forms of unprotected speech recognized to date, the extremely violent video games at issue here serve 'no essential part of any exposition of ideas, and are of such slight social value as a step to the truth' that the government must be allowed to regulate their dissemination to minors based upon content, without running afoul of the First Amendment," California said at the time, quoting a famous 1942 Supreme Court opinion.

The Video Software Dealers Association, which subsequently changed its name to Entertainment Merchants Association, argued that the state is unreasonably trying to extend obscenity regulations--aimed at explicit pornography--to computer software.

Justices Clarence Thomas and Stephen Breyer dissented from today's ruling. Thomas said the original view of the First Amendment at the time the Bill of Rights was enacted "does not include a right to speak to minors (or a right of minors to access speech) without going through the minors' parents or guardians."

Breyer's dissent took a different approach. He wrote: "California's law imposes no more than a modest restriction on expression. The statute prevents no one from playing a video game, it prevents no adult from buying a video game, and it prevents no child or adolescent from obtaining a game provided a parent is willing to help."

from the Australian, 2011-Jun-21, by James Allan:

Misguided legislation puts the big chill into freedom of speech

LAST night nearly 600 people in Melbourne paid to attend an evening in support of free speech. The audience and speakers were also there to support columnist Andrew Bolt who has been taken to court for an opinion he voiced in the Herald Sun. The legislation that allows that sort of speech-stifling action is terrible legislation in my view, and so I was happy to be one of five invited speakers.

The gist of my remarks were that the fight for free speech and the liberty to speak up on public issues - issues not excluding who we want to receive affirmative action or group rights-type benefits that attach only to a special few in society - is a fight that will never go away. As former US president Andrew Jackson put it, "eternal vigilance is the price of liberty".

And those who attended were not just supporting Bolt but freedom of speech and of liberty more generally. Because let me blunt. In my view this Racial Discrimination Act, the part amended by the Racial Vilification Act that gives us section 18C and in some circumstances makes hurting someone else's feelings, is awful.

Think about it. Someone's subjective sense of being offended or humiliated has been made determinative of whether an unlawful act has been committed, subject to a few exemptions in section 18D.

That's a terrible statutory provision. It ought to be repealed. Now. Yes, a judge may, perhaps, find the exemptions apply. Yes, there is some wiggle room. But even forcing someone to have to litigate constitutes a massive chilling effect on free speech. Let's face it. Not everyone has Bolt's cojones (and I know that may not have been the most felicitous way of putting the point). And not everyone has the resources of a big employer to back this sort of egregious litigation. These provisions create a sort of half-baked right not to be offended, a big mistake in my view.

So the fault lies with the legislature for passing these statutory provisions, not with the judges who have to interpret them. This is politically correct, pandering, group rights-inspired legislation.

The only sort of free speech that matters is the sort that offends some people somewhere. In a situation where all is agreement and harmony and people sitting in circles, holding hands, and singing Kumbaya, the concept of liberty and free speech does nothing. You will never have to fight for it meaning a freedom only to act or speak within the bounds of agreed opinion, good taste and proper decorum just isn't valuable. It doesn't carry with it any obvious good consequences.

The threat to our freedom of speech in the West today does not come from some Soviet-style secret police. No, it comes from turf-protecting bureaucrats who find themselves all of a sudden in the human rights game; it comes from people who want to create a right not to be offended.

Or at least not to be offended about the things that matter to them, because almost all the sorts of people who like the legislation being deployed against Bolt would be horrified to think that those in the US who are offended by the burning of the American flag ought to be able to prosecute the burners for their offended sensibilities. So what they really want is a right not to be offended, as long as it's the sort of things a good chardonnay-sipping member of the progressive elite ought to be offended about, nothing else.

But plain and simple that's a mistake. The only kind of free speech worth anything is the kind that leads to speech that offends people. And I say that knowing full well that none of us can be absolutists and there will always have to be some limits on speech, against counselling murder, say, or detailing how to make biological weapons.

But we ought to want as much scope as possible for people in a democracy to speak their minds. And precluding people from having and expressing an opinion on the problems with self-identifying as an indigenous person, or on who ought to be able to benefit from positive discrimination laws, well that's ridiculously inhibiting of free speech in my view.

I think that in any well-functioning democracy it is incumbent on all citizens to grow a thick skin. If you're offended, tell us why the speaker is wrong. Tell us why he or she is misguided or has defective moral antennae. Don't go to court and seek a court-ordered apology, or orders prohibiting publication of views you find offensive, or some two-bit judicial declaration.

And as a legislator under no circumstances pass statutes that allow for the creation of this mutant, half-baked right not to be offended. The very fact that people can be dragged through the courts - whatever the ultimate outcome - has a massive chilling effect on free speech. I know it. You know it. And our legislators ought to know it too, and do something about repealing this terrible piece of legislation.

At the end of the day those of us who want a considerable amount of scope for people to speak their minds are the optimists. We're the ones who are in the tradition of John Stuart Mill.

Recall the main ground that Mill gave for preferring very few limits indeed on what people can say. It was a consequentialist ground or justification. Leave people almost always free to speak as they like and in the ensuing battle of ideas truth will out, or in less hopeful terms, it is more likely to emerge than if people are silenced and issues are resolved by self-styled human rights experts or government appointees.

So for the benefit of getting at truth and true assertions we override hurt feelings, we ignore offended sensibilities, we discount the possibility of outright lies being spread, and we choose not to have our legislation accord with the world view of grievance industry mongers. Short of obvious, concrete, unavoidable harm to others, we let speech alone.

And underlying that rationale for lots of scope to speak our minds is a clear optimism about truth emerging in the tussle of ideas and ultimately an optimism about the views of the ordinary voter in a democracy.

In my opinion too many of the people who push these speech-limiting laws have simply lost faith in the views and beliefs of their fellow citizens. They have even lost a bit of faith in democracy itself.

Theirs is not the optimistic position. Ours is.

We are the citizens of one of the world's oldest and greatest democracies; we are not a collection of victims too offended to muster up the resources to reply on our own behalf when we disagree with others.

It is a badge of honour to live in a society that protects differences of opinion, including ones with which we vehemently disagree.

Which was why I was so delighted to have been asked to speak last night in Melbourne. James Allan is Garrick Professor of Law at the University of Queensland.

from the Inquirer UK, 2011-Jun-16, by Dean Wilson:

British student faces extradition to US over copyright infringement
Vows to fight charges

A 23-YEAR-OLD BRITISH COMPUTER STUDENT faces possible extradition to the US for linking to copyrighted content on his website.

The student, Richard O'Dwyer, was accused of copyright infringement after setting up the website TV Shack, which had links to thousands of films and tv shows, but did not directly host them.

The website was seized by US Immigration and Customs Enforcement. O'Dywer was arrested on May 23, brought to Wandsworth prison and then released on a £3,000 bail paid by his aunt.

Now he faces extradition to the US, where he could get up to five years in jail if found guilty of infringing copyrighted material, according to the Metro newspaper.

He has vowed to fight the extradition attempt and his mother has pleaded with the UK government to "bring some common sense" to the entire affair and end the extradition demands, which she called disproportionate, unnecessary and deeply truamatic.

She said that her son was foolish in not understanding the implications of copyright and said he was talented with web design, a skill he likely gained during his computer sciences studies at Sheffield Hallam University. Not properly understanding the law is unlikely an excuse that will wash with the courts, however.

O'Dywer's lawer is Ben Cooper, who is also defending alleged military hacker Gary McKinnon, who equally faces extradition to the US. This is a much less serious crime than McKinnon's and Cooper has prepared a number of defence arguments, including the fact that O'Dwyer never hosted the copyright content himself and that the server was not based in the US and therefore he should not be extradited to there.

O'Dwyer is due in court again on September 12.

from New Scientist, 2011-Jun-3, by Jacob Aron:

New media laws could mean jail for ordinary users

Regulating the internet is no easy task, as a recent string of technology-related bills proposed by US legislators shows. Poor wording and a lack of understanding of the underlying technology could put ordinary internet users at risk of breaking the law - even though supporters of the new bills say they wouldn't be targeted.

One bill, put forward by Senators Amy Klobuchar, John Cornyn and Christopher Coons, aims to make it a crime to stream copyrighted material, but as Techdirt points out, the wording of the bill as it currently stands could make simply embedding a YouTube video an illegal act.

The bill is intended to target streaming websites that provide entire movies for free, but uses the phrase "public performance by electronic means" without clearly defining it. Is embedding a video a performance? It's an important question, because the bill also imposes a jail term of up to five years for ten such "performances".

Another bill, recently signed into law by the governor of Tennessee, makes it illegal to share your password for media streaming services such as Netflix or Hulu. Anyone who allows friends or families to use their login details to access these services could potentially face a one-year jail sentence and a $2500 fine for stealing media worth $500 or less.

The new law updates existing legislation that makes it illegal to use services such as cable television or restaurants without paying, updating the wording to include "entertainment subscription services", but it seems Netflix doesn't see the need for such an update. The compoany told MediaBeat:

These flawed bills come shortly after the proposal of the controversial Protect IP Act, which would give the US Department of Justice the power to block non-US websites hosting copyright-infringing material. The Act would also require search engines to remove links to such sites.

Google's chaiman, Eric Schmidt, has spoken out against the bill, saying it "sets a very bad precedent".

from TechDirt,com, 2011-Jun-1, by Mike Masnick:

Senators Want To Put People In Jail For Embedding YouTube Videos
from the not-understanding-the-technology dept

Okay, this is just getting ridiculous. A few weeks back, we noted that Senators Amy Klobuchar, John Cornyn and Christopher Coons had proposed a new bill that was designed to make "streaming" infringing material a felony. At the time, the actual text of the bill wasn't available, but we assumed, naturally, that it would just extend "public performance" rights to section 506a of the Copyright Act.

Supporters of this bill claim that all it's really doing is harmonizing US copyright law's civil and criminal sections. After all, the rights afforded under copyright law in civil cases cover a list of rights: reproduce, distribute, prepare derivative works or perform the work. The rules for criminal infringement only cover reproducing and distributing -- but not performing. So, supporters claim, all this does is "harmonize" copyright law and bring the criminal side into line with the civil side by adding "performance rights" to the list of things.

If only it were that simple. But, of course, it's not. First of all, despite claims to the contrary, there's a damn good reason why Congress did not include performance rights as a criminal/felony issue: because who would have thought that it would be a criminal act to perform a work without permission? It could be infringing, but that can be covered by a fine. When we suddenly criminalize a performance, that raises all sorts of questionable issues.

Furthermore, as we suspected, in the full text of the bill, "performance" is not clearly defined. This is the really troubling part. Everyone keeps insisting that this is targeted towards "streaming" websites, but is streaming a "performance"? If so, how does embedding play into this? Is the site that hosts the content guilty of performing? What about the site that merely linked to and/or embedded the video (linking and embedding are technically effectively the same thing). Without clear definitions, we run into problems pretty quickly.

And it gets worse. Because rather than just (pointlessly) adding "performance" to the list, the bill tries to also define what constitutes a potential felony crime in these circumstances:

the offense consists of 10 or more public performances by electronic means, during any 180-day period, of 1 or more copyrighted works

So yeah. If you embed a YouTube video that turns out to be infringing, and more than 10 people view it because of your link... you could be facing five years in jail. This is, of course, ridiculous, and suggests (yet again) politicians who are regulating a technology they simply do not understand. Should it really be a criminal act to embed a YouTube video, even if you don't know it was infringing...? This could create a massive chilling effect to the very useful service YouTube provides in letting people embed videos.

from IDG News Service, 2011-May-26, by Grant Gross:

Senate panel approves controversial copyright bill

A U.S. Senate committee has unanimously approved a controversial bill that would allow the U.S. Department of Justice to seek court orders requiring search engines and Internet service providers to stop sending traffic to websites accused of infringing copyright.

The Senate Judiciary Committee approved the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act, or PROTECT IP Act, which would also allow copyright holders to seek court orders requiring payment processors and online ad networks to stop doing business with allegedly infringing websites.

The bill, introduced two weeks ago, now awaits approval by the full Senate.

The legislation will allow the DOJ to target the "worst of the worst" foreign websites dedicated to digital piracy or selling counterfeit goods, said Senator Patrick Leahy, a Vermont Democrat and lead sponsor of the bill. Intellectual property theft is "unacceptable," Leahy, chairman of the committee, said in a statement.

"Few things are more important to the future of the American economy and job creation than protecting our intellectual property," Leahy added. "At a time where our country is beginning to regain its economic footing, businesses face an additional hurdle, the severity of which is increasing by the day -- digital theft."

Several groups criticized the bill. A recent paper from five Internet engineers said the bill could "threaten the security and stability of the global DNS" by encouraging widespread circumvention of DNS (domain name system) filters.

The bill would do little to stop copyright infringement online while opening up payment processors and online ad networks to multiple lawsuits from copyright holders, added Sherwin Siy, deputy legal director for Public Knowledge, a digital rights group.

The PROTECT IP Act "threatens the security and global functioning of the Internet, and opens the door to nuisance lawsuits while doing little if anything to curb the issues of international source of illegal downloads the bill seeks to address," he said in a statement.

The bill would create a list of blocked Internet sites, added Ed Black, president and CEO of the Computer and Communications Industry Association, a tech trade group. "At a time when U.S. businesses are increasing[ly] confronted with barriers to Internet trade and censorship abroad, a government committed to Internet openness should not be in the business of blacklisting Internet sites," he said in a statement.

Several other groups, including the Motion Picture Association of America and the U.S. Chamber of Commerce, applauded the committee's vote, however.

The National Cable and Telecommunications Association, a trade group representing ISPs that could be targeted by court orders authorized in the bill, also voiced support for the legislation.

"By cracking down on rogue websites that have for too long encouraged the theft of valuable content and intellectual property, the PROTECT IP Act of 2011 sends a strong message that this illicit practice will no longer be tolerated," NCTA President and CEO Michael Powell said in a statement.

Grant Gross covers technology and telecom policy in the U.S. government for The IDG News Service. Follow Grant on Twitter at GrantGross. Grant's e-mail address is grant_gross@idg.com.

from the Wire Report of Canada, 2011-May-27:

U.S. Protect IP Act stalls in Senate

Democratic Senator Ron Wyden announced Thursday that he is blocking a Senate committee motion to proceed with U.S. anti-piracy bill S. 968, the Protect IP Act, citing concerns about freedom of speech and technological innovation.

“Consistent with Senate Standing Orders and my policy of publishing in the Congressional Record a statement whenever I place a hold on legislation, I am announcing my intention to object to any unanimous consent request to proceed to S. 968, the PROTECT IP Act, Wyden said in a statement.

He said the costs of the legislation, similar to a bill introduced last year known as the Combating Online Infringement and Counterfeits Act, outweigh the benefits.

“I understand and agree with the goal of the legislation, to protect intellectual property and combat commerce in counterfeit goods, but I am not willing to muzzle speech and stifle innovation and economic growth to achieve this objective. At the expense of legitimate commerce, [the Protect IP Act] takes an overreaching approach to policing the Internet when a more balanced and targeted approach would be more effective. The collateral damage of this approach is speech, innovation and the very integrity of the Internet,” he said.

The Senate Judiciary Committee unanimously approved the legislation Thursday but Wyden's objection puts it on hold.

The Protect IP Act is intended to provide powers to the U.S. Attorney General to bring court actions against “rogue sites” that infringe copyright or facilitate its infringement.

Web service companies such as Google Inc., Yahoo! Inc., Ebay Inc., and PayPal oppose the bill.

But a coalition of about 170 businesses and associations, including Nike Inc., Ford Motor Co., the Motion Picture Association of America and NBC Universal, have sent a letter to the committee expressing their support for the legislation.

The Conservative government's former omnibus copyright reform legislation, Bill C-32, contained a similar provision to limit web services that enable copyright infringement.

The bill is expected to be reintroduced in the fall.

from the Wall Street Journal, 2011-Apr-27, by David Marston and John Yoo:

Political Privacy Should Be a Civil Right
In NAACP v. Alabama the Supreme Court upheld the right to free and discreet association.

Suppose that during the civil rights movement segregationist governors ordered all state contractors to disclose their political donations in an attempt to expose civil rights supporters to harassment and retaliation. The Supreme Court would have had none of it.

In NAACP v. Alabama (1958), the court barred Alabama from forcing the NAACP to disclose its members. Those justices would have struck down a similar effort to force the release of the NAACP's financial supporters. They would have rightly viewed it as an infringement of the constitutional right to free association and free speech.

Today President Obama is ignoring the lessons of the civil rights era he claims to revere. According to a draft executive order leaked last week, Mr. Obama plans to require any company seeking a federal contract to disclose its executives' political contributions over $5,000—not just to candidates, but to any group that might make "independent expenditure" or "electioneering communication" advertisements.

If a small businesswoman wants to sell paper clips to the Defense Department, Mr. Obama would force her to reveal contributions to groups such as Planned Parenthood or the National Rifle Association. These donations are obviously irrelevant to whether she made the most reliable bid at the lowest price. The only purpose of the executive order is to dangle the specter of retaliation (by losing her contracts) and harassment (from political opponents).

It would be comforting if this order had been some aberration produced from somewhere deep in the bowels of the federal bureaucracy. Unfortunately, it was not. This order represents the latest salvo in the Obama administration's war on the First Amendment rights of its political opponents.

The conflict goes back to January 2010, with the Supreme Court's decision in Citizens United v. Federal Election Commission. The court held as unconstitutional the McCain-Feingold Act's limits on the political spending of corporations, unions and other groups. Mr. Obama struck back, claiming that the decision "strikes at our democracy itself." He trotted out the usual suspects—"big oil, Wall Street banks, health-insurance companies and other powerful interests"—as the winners. He promised that the White House would "talk with bipartisan congressional leaders to develop a forceful response to this decision."

There was no bipartisanship, but there was certainly a forceful response. Democrats proposed the Disclose Act, which would have muzzled political speech by prohibiting federal contractors from making contributions to federal candidates or parties. Though the act failed to overcome a filibuster last year in the Senate, its supporters remain undeterred.

Having failed to undo Citizens United by legislation, Mr. Obama apparently believes that he can veto the Supreme Court by naked presidential fiat. But before the administration barrels through with this attempt to suppress corporate political activity, it would do well to revisit NAACP v. Alabama.

The court declared that the privacy of group membership and political activity were critical to the "effective advocacy of both public and private points of view, particularly controversial ones." Privacy can be critical for free speech. "Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs," Justice John Marshall Harlan wrote for a unanimous court.

The court went on to recite a litany of potential retaliation—"economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility"—that could deter people from publicly supporting the NAACP. It did not matter, the justices observed, that the harassment would likely come from "private community pressures." What mattered is that such pressure would be prompted by "the initial exertion of state power."

Our era of instant mass communication exponentially multiplies this threat. Supporters of California's Proposition 8, which bars gay marriage, have faced relentless harassment after a federal court refused to bar the disclosure of their identities in 2009. Opponents promptly created a website that used the Prop 8 list to create a map of donors' homes. Widespread intimidation followed: Some Prop 8 supporters were fired from their jobs, and several of their businesses were boycotted.

Mr. Obama's executive order threatens to replicate the Prop 8 experience on a nationwide scale. In fact, it requires the release of contractors' political contributions in a publicly available electronic database to be posted online as soon as possible. It shouldn't matter here that disclosure would be the price for doing business with the government. In Boy Scouts of America v. Dale (2000), the Supreme Court made it clear that a group did not have to give up its right to associate in exchange for some government benefit.

Civil libertarians and liberals have so far been mum in the face of Mr. Obama's executive order. They're likely justifying their silence on the basis that businesses—not unions—will suffer. But if the president succeeds in reducing the free-speech rights of business today, it will be far easier to limit the same rights of other Americans tomorrow.

Imagine the outcry we'll hear from self-described First Amendment supporters when every professor applying for a government research grant has to disclose his political donations.

Mr. Marston is a lawyer and former U.S. attorney in Philadelphia. Mr. Yoo, a law professor at the University of California Berkeley and a scholar at the American Enterprise Institute, served in the George W. Bush Justice Department.

from the New York Times, 2011-May-12, printed 2011-May-13, p.A1, by Stephanie Strom:

I.R.S. Moves to Tax Gifts to Groups Active in Politics

Big donors like David H. Koch and George Soros could owe taxes on their millions of dollars in contributions to nonprofit advocacy groups that are playing an increasing role in American politics.

Americans for Prosperity, a libertarian group that opposes many of President Obama's policies, has been generously financed by David H. Koch, a billionaire.

Invoking a provision that had rarely, if ever, been enforced, the Internal Revenue Service said it had sent letters to five donors, who were not identified, informing them that their contributions may be subject to gift taxes depending on whether the donations exceeded limits under the tax laws.

These advocacy groups have been drawing more scrutiny, from President Obama as well as others, as they have proliferated and funneled vast sums of money in support of campaigns and causes, without having to publicly disclose their donors.

During the midterm cycle, for example, groups like Crossroads GPS, which has ties to the Republican strategist Karl Rove, and Americans for Prosperity, backed by Mr. Koch and his brother Charles, were heavily involved in politicking, spurring campaign finance watchdogs to complain that they were flouting election and nonprofit laws.

Spokesmen for the Koch brothers and for Mr. Soros would not comment as to whether they had paid gift taxes on these types of donations, or whether they had received letters from the I.R.S.

These organizations were established as nonprofit corporations under a section of the tax law, 501(c)(4), and the rules governing them say their primary purpose cannot be political.

The timing of the agency's moves, as the 2012 election cycle gets under way, is prompting some tax law and campaign finance experts to question whether the I.R.S. could be sending a signal in an effort to curtail big donations.

“There are a whole heck of a lot of people misusing (c)(4) groups as a means of getting around campaign finance regulations, and we lack a coherent system of laws to deal with that,” said Donald B. Tobin, a legal expert on campaign finance and tax laws at the Moritz College of Law at Ohio State University. “Now here's a stick, frankly, that says there are consequences for doing that.”

In a statement released Thursday, Michelle L. Eldridge, a spokeswoman for the I.R.S., said that the inquiries were initiated by agency employees, not White House or other Obama administration officials, “as part of their increased efforts in the area of nonfiling of gift and estate tax returns.”

The letters informed donors that investigations had been opened to determine why a gift tax form had not been filed, and requested that donors submit records of all donations in the year 2008, according to a redacted copy obtained by The New York Times.

While tax lawyers who learned of the investigations have been issuing warnings to clients of potential trouble on a broader scale, the I.R.S. statement denied casting a wider net, “These examinations are not part of a broader effort looking at donations to 501(c)(4)'s.”

The White House would not comment. Some members of Congress have been asking the I.R.S. to investigate the tax-exempt status of these groups, too, although lawmakers have also cautioned that since the Nixon years, the agency has been strictly prohibited from what could be considered politically motivated inquiries.

Still, experts are sensing that the message being sent may deter large donations to these groups, at a time when big corporate, union and like-minded political contributions are expected to flood the election cycle through the barriers lifted by last year's Supreme Court ruling in the Citizens United case.

Both major political parties and candidates have benefited from these types of organizations, but the Republican groups grew in force and size after the 2008 election, partly in recognition of Mr. Obama's proficiency at fund-raising. For example, Mr. Rove's group, one of the best known from the 2010 midterm cycle, raised $70 million. Americans for Prosperity, a libertarian group that is opposed to many of President Obama's policies, has been generously financed by David Koch.

Democrats have embraced the model, too. Bill Burton, Mr. Obama's former deputy press secretary, was skewered by critics of these groups for creating Priorities USA Action to help Democrats. In 2009 and 2010, Mr. Soros, the billionaire investor, donated more than $12 million to advocacy groups.

In general, individuals incur gift taxes of 35 percent on any amount exceeding $13,000 in a year, with a limit for couples of $26,000. A lifetime exemption covers $5 million in gifts — to be reduced to $1 million in 2013 — but experts say many wealthy donors are likely to have used that in their estate plans.

The I.R.S. definitively declared these gifts taxable in 1982. “That was their last word on it, so these letters just look like a sort of trap for the unwary, which is not fair,” said Ofer Lion, a lawyer who has written about the issue.

In December, after the 2010 midterm elections, officials with the I.R.S. division that oversees tax-exempt organizations indicated it would pay closer attention.

But at a meeting of an American Bar Association subcommittee last Friday, they were surprised to learn that their colleagues in the estate and gift tax unit also had an increased interest, according to lawyers who were there.

“I don't know how extensive this effort is, but I have one such client and I've spoken with others with clients who have received similar letters,” said Gregory L. Colvin, a lawyer specializing in nonprofit law.

Other groups rarely receive donations big enough to incur the gift tax, which is why many of them have established affiliated charities. Charities, unlike almost all other tax-exempt organizations, offer their donors a tax deduction and so attract large gifts.

Big donations to the largely unregulated 527 groups that were influential in the 2004 election cycle are not subject to the gift tax. “Congress specifically exempted donors to 527 organizations from the gift tax in 2000, but it didn't exempt contributions to (c)(4) groups because there wasn't an issue at the time,” said Alan P. Dye, a lawyer who represents a number of conservative advocacy groups. Now that the Citizens United case permits big donors like corporations and unions to spend money in elections, Mr. Dye added, “I think it's going to be really interesting to see how this plays out in Congress or the courts.”

In the meantime, Marcus S. Owens, a lawyer who represents nonprofits and who formerly headed the I.R.S. division that oversees tax-exempt organizations, predicted that the tax agency's moves would be watched warily by contributors. “The lack of clarity and the potential for not-insignificant taxation on these gifts will cause many of the biggest donors to think twice,” he warned.

from the Wall Street Journal, 2011-May-18:

The IRS Gets Political
The taxman goes after campaign donors.

We're starting to see a pattern here. Since the Supreme Court restored the First Amendment rights of businesses and unions in last year's Citizens United ruling, Democrats have been searching for a way to claw back control over political speech. The latest bureau to get the memo is the Internal Revenue Service, which may retroactively tax top donors to political advocacy groups.

In the crossroads, er, cross-hairs, are nonprofit groups that register under section 501(c)(4) of the tax code and spent millions on political advertising in the last election cycle. Big donations to those groups, the agency now says, should have been subject to gift taxes and may be owed retroactively. In a letter to one donor, the IRS noted that it "had received information that you donated cash to . . . an IRC Section 501(c)(4) organization . . . and your contribution should have been reported on your 2008 federal gift tax return."

The letters are especially odd since the purpose of the gift tax has traditionally been used in coordination with the estate tax, to prevent people from avoiding the tax by divesting their wealth before they die. Contributions to 501(c)(4)s aren't a routine death tax avoidance mechanism, and the contributions now under scrutiny are a pittance compared to overall gift tax revenues. So, hmmm, what could be the reason to start asserting the provision now, and only against a handful of high-profile political donors?

IRS spokesman Michelle Eldridge said in a statement last week that the letters are the idea of career IRS employees, not the White House, and that they are part of a larger investigation of gift tax compliance. Count us skeptical that a new targeted enforcement plan, likely coordinated between at least two of the highly compartmentalized divisions of the IRS, was just cooked up by some career guys.

But even if the Obama Administration doesn't deserve primary credit for this idea to chill political activity, it will still serve the Democrats' purpose in time for 2012 fundraising. A tax probe of donations given by a specific class of political donors is a boldfaced attempt to punish and discourage political speech.

The IRS also says the investigations into a few deep-pocketed donors isn't the prelude to a broader offensive against the groups. Nah, that would mean they were taking their cues from liberal campaign finance groups like Democracy 21, which has been flogging this idea as a way to impose greater disclosure requirements. Last September, Montana Democrat Max Baucus wrote a letter to IRS Commissioner Doug Shulman to suggest he start investigating the political groups.

We wish we were shocked, but the plan is merely the latest play by Democrats to crack down on donors who support their opponents. In 2010 they tried and failed to pass the Disclose Act, which would have forced disclosure on business donations but left unions alone.

This year they've turned to harassment by regulation, first asking the Federal Communications Commission to require groups that run political ads to disclose their high-dollar donors. The Obama Administration is also working up an executive order to require anyone bidding for a federal contract to disclose if the company or its executives donated more then $5,000 to independent groups.

Now comes the 501(c)(4) net, which may catch the likes of liberal uber-donor George Soros, though we'd bet he's happy to lend his name to the project to create an appearance of nonpartisanship. The real targets of the disclosure project are conservative groups like Crossroads GPS and Americans for Prosperity, which have seen their fundraising and influence grow in recent years.

All this is done in the name of "transparency," which is a nice way of saying, we know where you live. The real goal is to intimidate business and big donors from giving money to Republicans. The draft executive order aiming to wrest disclosure from federal contractors appears to make no such demands on federal labor unions, which had their free speech rights restored alongside business in Citizens United.

Our support for donor disclosure over the years has always been contingent on ending all restrictions on campaign donations. But the campaign finance scolds who are allied with Democrats, such as Democracy 21 and Norm Ornstein of the American Enterprise Institute, are trying to use disclosure as a political weapon now that the Supreme Court has declared their other ideas illegal. Unleashing the IRS is an especially nasty turn.

from Politico.com, 2011-Apr-19, by Kenneth P. Vogel:

W.H. mulls limits to anonymous gifts

The Obama administration is considering a number of measures to compel disclosure of the kind of anonymous campaign contributions that helped finance millions of dollars of attack ads against Democrats during the 2010 elections.

The White House last week began circulating a draft executive order that would require companies seeking government contracts to disclose contributions – including those that otherwise would have been secret – to groups that air political ads attacking or supporting candidates.

The proposed order follows several actions by regulatory agencies that have a similar intent of making corporate and individual donations more transparent.

Last month the Securities and Exchange Commission issued a decree that could result in shareholders having more say in corporate election spending. Democratic appointees to the Federal Communications Commission and Federal Election Commission are pushing measures that could make public currently anonymous contributions to outside groups.

The Democratic FEC commissioners are also trying to restrict political spending by U.S. subsidiaries of foreign corporations.

Taken together, the moves represent a broad administrative push to implement reforms that Congress failed to pass last year to blunt the impact of the Supreme Court’s decision in Citizens United vs. FEC in January 2010.

That decision prompted a deluge of outside advertising that liberals say favored Republicans in the 2010 midterm elections.

Administration critics, including the powerful U.S. Chamber of Commerce, are seizing on the White House’s draft executive order, in particular, as evidence of an attempt to use executive power to punish or silence political adversaries, while rewarding supporters.

Calling the draft executive order “an affront to the separation of powers … (and) to free speech,” chamber spokeswoman Blair Latoff said it “lays the groundwork for a political litmus test for companies that wish to do business with the federal government” and is “less about disclosure than intimidation.”

But congressional Democrats and White House allies applauded the draft executive order as an overdue effort to prevent the 2012 elections from being hijacked by undisclosed big moneyed special interests – on both sides of the partisan divide.

“The fact that congressional Republicans may oppose disclosure does not mean that efforts to obtain it are, by definition, partisan,” said Fred Wertheimer, president of Democracy 21, a non-profit group that pushes for stricter campaign finance rules, and that opposed Citizens United in its Supreme Court challenge.

Wertheimer pointed out that Democrats are planning their own big spending groups to counter those established by Republicans in the wake of Citizens United and called “disclosure of secret contributions being spent to influence federal elections … essential public policy.”

Craig Holman, a campaign finance lobbyist for Public Citizen, acknowledged that the Republican takeover of the House and narrowing of the Democratic majority in the Senate in the 2010 midterms puts the onus on the Obama administration to use executive power to tighten campaign finance disclosure and other rules.

“I would have liked to see (Obama) play a more active role administratively on a lot of these reform efforts, but I hope this (executive order) is a signal that the White House is going to get more involved in the regulatory approach, because they can achieve a great deal through executive order,” said Holman.

Holman worked with the administration and its congressional allies last year on a bill to respond to the Citizens United decision by forcing groups airing certain ads to name their top five donors on screen and on their websites. That bill would also have limited political ad spending by companies with government contracts or that received government bailouts from the Troubled Asset Relief Program, as well as those with more than 20 percent foreign ownership.

The bill, called the DISCLOSE Act (short for “Democracy Is Strengthened by Casting Light On Spending in Elections”) last year passed the Democratic-controlled House, but died in the Senate.

A related House bill to require shareholder approval before a publically traded corporation could spend money on politics never came up for a full House vote.

One Democratic congressional aide, who requested anonymity to talk about interactions with the White House, said that Democratic House members had made clear that “there was interest in the House in trying to get the White House to do whatever they could do within their constitutional power” to move the issue.

The draft executive order, which the White House is circulating for comment among agencies, says its goal is to “increase transparency and accountability” and “ensure the integrity of the federal contracting system” by requiring companies submitting bids for federal work to disclose contributions made within the last two years by their officers and directors to federal candidates and parties.

Such contributions already have to be reported to the FEC, but the executive order also would require disclosure of contributions or expenditures made by a company’s officers and directors, as well as the company and its affiliates, to support candidates, including those “made to third party entities with the intention or reasonable expectation that parties would use those contributions to make independent expenditures or electioneering communications.”

That last phrase seems an effort to directly address spending by groups registered under sections of the tax code that don’t require disclosure of donors, such as the chamber – which is registered under section 501(c)6 – and Crossroads Grassroots Policy Strategies, which is registered under section 501(c)4.

An administration official stressed that the executive order, which cites state “pay-to-play” laws as a model, “is a draft ... that is still moving through the standard review and feedback process” and “is not a final document.” But the official, who requested anonymity to discuss the working draft, said Obama “is committed to an overhaul of government contracting policies to promote accountability, transparency and competition.”

The executive order seems likely to quiet some criticism Obama has been facing from advocates for stricter campaign finance regulations. They contend Obama has failed to live up to his campaign promise to reduce the influence of big money in politics.

They have also criticized him for not overhauling the perpetually gridlocked FEC or the presidential public financing system, and for signaling that he will again bypass the public financing system and won’t discourage outside groups from raising and spending huge sums of cash to support his reelection effort.

Hans von Spakovsky, a former GOP appointee to the FEC who first revealed the circulating draft, pointed out that it does not seem to apply to Democratic-allied groups that either receive grants from the federal government, or unions that negotiate contracts with it.

“The fact is that they’re only extending it to the one group that they think is probably going to hurt them politically, as opposed to unions and groups like Planned Parenthood, which are going to help them, shows that there is a political agenda for doing this,” he told POLITICO.

“This president in two years hasn’t made the transition from being a candidate to being a president and I think this is just also evidence of that,” he said of the executive order, asserting that it, combined with the regulatory processes at play at the FEC, SEC and FCC, represent a “very anti-democratic” circumvention of Congress.

“When the Democrats can’t get something through Congress, they turn to these regulatory agencies and try to get them to implement what they couldn’t get through legislation,” he said.

The SEC staff issued a letter late last month that cleared shareholders to learn about and vote on one corporation’s political spending, but which shareholder rights’ advocates believe will clear the way for similar actions at other corporations.

But pushes to implement aspects of the DISCLOSE Act at the FEC and FCC have been less fruitful.

At the FEC, three Democratic commissioners (all of whom predate Obama’s presidency) have tried to compel disclosure of certain secret contributions and to bar political spending by U.S. subsidiaries of foreign corporations. But their effort has been blocked by the three Republican commissioners, fueling calls for Obama to replace the commissioners from Wertheimer, Holman and other advocates for stricter campaign finance rules.

At the FCC, a petition by an advocacy group asking the agency to require on-air identification of funders of political advertisements has the support of two Democratic commissioners, but the Obama-appointed chairman, Julius Genachowski, has yet to weigh in.

Still, Sean Parnell of the anti-regulation non-profit group Center for Competitive Politics, said the technically independent regulatory processes at play at the FEC, SEC and FCC, should be viewed along with the draft executive order as “a concerted and coordinated effort to try to stifle certain voices ahead of the 2012 elections.”

Parnell, whose group filed a brief supporting Citizen United’s lawsuit against the FEC, explained “there’s simply too much activity in different corners all aimed at in one way or another undoing or limiting the First Amendment rights recognized in the Citizens United decision to believe that it’s a coincidence.”

from the Wall Street Journal, 2011-Apr-25:

The White House Wants a List
Want a federal contract? Show politicians the money.

Here's another reason to think the 2012 campaign is underway with a vengeance: If a company wants a federal government contract, from now on it will first have to disclose if the company or its executives gave more than $5,000 in political donations.

This latest federal rule comes courtesy of a new executive order now being drafted in the White House. The order would implement parts of last year's Disclose Act, which failed to pass Congress but was a favorite of Democrats because it would deter political contributions by business after last year's Citizens United v. FEC Supreme Court decision. White House press secretary Jay Carney confirmed last week that the order is in the works after former Federal Election Commission official Hans von Spakovsky obtained a copy of the draft.

The draft of the executive order describes the rule's purpose as a way to ensure the federal contracting system is free from the influence of "political activity or political favoritism." Hmmm. Last we checked, government contractors were already required to disclose contributions to candidates. The new twist here is the disclosure of donations to independent groups, a category in which conservatives outspent liberals for the first time in the last election cycle.

And what do you know? The draft order doesn't cover federal employee labor unions, the Democratic allies whose free speech rights were recognized alongside corporations in Citizens United. Nor do the disclosure requirements extend to recipients of federal grants, which often run into the millions of dollars. These donees are usually Democrats too.

Federal contracts are supposed to go to the lowest bidder, so it's hard to see how disclosure of political contributions would help contract decisions. Mandatory disclosure would impose politics on federal procurement choices as never before.

Even GOP strongman Tom DeLay never tried this one during his K Street heyday, though you can imagine the howls if he had. The closest we can come to something comparable is former Nixon henchman John Dean's memo during the Watergate era that the point of keeping an "enemies list" was to "determine what sorts of dealings these individuals have with the Federal Government and how we can best screw them (e.g., grant availability, federal contracts, litigation prosecution, etc.)."

These days the White House proxies on the political left will do the enemy listing. Disclosure may sound nice, but the real point is to put companies on notice that their political contributions will have, well, consequences. When the Disclose Act was before Congress, New York Democrat and co-sponsor Chuck Schumer made clear the bill was designed to "embarrass companies" out of exercising the rights recognized in Citizens United. "The deterrent effect should not be underestimated," he said.

Exhibit A was last year's campaign against Target Corp. When the retailer donated $150,000 to an independent group running ads in the Minnesota governor's race, MoveOn.org smeared the company as antigay, threatened a boycott, and said Target needed to be made an example of or such donations could be "the tip of the iceberg." Target stopped donating to that group.

The executive order is only the latest Democratic effort to intimidate business donors. Last month, the liberal Media Access Project asked the Federal Communications Commission to begin requiring groups that run political ads to disclose their major donors on the air, a wacky interpretation of the 1934 Communications Act. Last week, Maryland Democrat Chis van Hollen sued the FEC to demand donor disclosure.

The point of all this is to discourage political speech by certain speakers. Citizens United was a landmark victory for liberty because it blew a huge hole in the architecture of campaign finance limits that had increasingly restricted political speech. Having failed to overrule Citizens United in Congress, Democrats now want to do it via executive diktat. Remember when Barack Obama campaigned as a postpartisan who'd stop all that Washington nastiness?

from the New York Times, 2011-Apr-29, printed 2011-Apr-30, p.A1, by Jim Rutenberg:

Groups Form to Aid Democrats With Anonymous Money

MANCHESTER, N.H. — A group including former White House officials, union leaders and one of Hollywood's biggest producers have joined forces to start an outside effort to help President Obama and Congressional Democrats in 2012 by using the very sort of anonymous, unlimited donations from moneyed interests that the president has so deplored.

Co-founded by the former White House deputy press secretary Bill Burton and with seed money from the Service Employees International Union and the film producer Jeffrey Katzenberg, the group's entrée into the early 2012 contest all but ensures that the presidential race will be awash in cash from undisclosed corporate and labor sources with huge stakes in Washington policy making.

At the heart of the effort, introduced Friday morning, are two groups: Priorities USA Action, which will engage directly in electioneering backed by donors who will have to be identified but can give unlimited amounts, and Priorities USA, which will advertise about related campaign issues using money from undisclosed sources.

The effort is modeled on the one Republicans started last year — with help from the Republican strategist Karl Rove — that attacked Democrats with a barrage of advertisements, mailings and phone calls. It was widely credited with helping the party to take control of the House and diminish the Democrats' edge in the Senate last fall. One of those groups, Crossroads GPS, was set up under a section of the tax code that allowed its donors to remain anonymous, leading Mr. Obama to refer to such groups collectively as “a threat to democracy” for the way they had shielded corporate interests from view as they sought to sway elections.

Democrats had eschewed the formation of such groups last year at Mr. Obama's public urging, but after the elections in November prominent liberals vowed to form with outside groups of their own to combat the likes of Crossroads.

Speaking aboard Air Force One on Friday, the White House press secretary, Jay Carney, said that the president's views had not changed and that the administration had nothing to do with the new groups.

“We don't control outside groups,” Mr. Carney said. “These are not people working for the administration.”

The Priorities USA organizers said they hoped to raise enough money to keep pace with the Crossroads groups, which have set a goal of raising $120 million for the 2012 election cycle.

The organizers said they would coordinate their efforts with a series of other liberal groups that have formed in recent months to bolster Democrats and Mr. Obama and attack Republicans and conservatives, much the way the Crossroads groups have coordinated with like-minded organizations against Democrats.

The announcement brought immediate criticism from groups calling for tighter campaign finance restrictions, and broader adherence to existing law, that Democrats were now getting into the act themselves.

Former Senator Russ Feingold, Democrat of Wisconsin and a co-sponsor of the landmark legislation of 2002 that had placed tight restrictions on corporate giving but has since been chipped away by court rulings, said in a statement that efforts to imitate the “right-wing tactics” of Mr. Rove and others “do our nation no favors.”

Fred Wertheimer, president of the group Democracy 21, said his group was looking into filing a complaint with the Internal Revenue Service questioning the tax status of Priorities USA, saying that he was skeptical that it was serving anything other than a political purpose intended to influence the upcoming election. (The section of the tax code it was formed under — 501(c) (4) — is for groups that are not seeking to directly affect elections). He has registered a similar complaint against Crossroads GPS.

Mr. Wertheimer predicted that the 2012 campaign would have more anonymously donated money working for or against the election of federal candidates than any other has since the Watergate scandal kicked off the decades-long effort to reform the system — unless, he said, new legislative steps are taken to force greater transparency (an unlikely seeming eventuality for now given that both parties are getting so deeply involved in soliciting secret money).

Republicans seized on the formation of the group and its connections to the White House via Mr. Burton and the other co-founder of the groups, Sean Sweeney, a onetime deputy to the former White House chief of staff Rahm Emanuel, as an example of hypocrisy.

Crossroads GPS publicized Mr. Obama's remarks in Philadelphia in October questioning anonymous donations that were spent in the service of Republicans. “The American people deserve to know who's trying to sway their elections, and you can't stand by and let the special interests drown out the voices of the American people,” Mr. Obama said then.

An aide to the Senate minority leader, Senator Mitch McConnell of Kentucky, sent an e-mail quoting Mr. Burton as saying last year, “The president thinks that if you're going to participate in politics, you ought to be transparent about it.”

Coordination between outside groups and federal candidates is strictly prohibited, if hard to prove and harder still to enforce.

Asked if he had any contact with the White House on the formation of the groups, Mr. Burton said in an e-mail, “We will be clear that we cannot coordinate with anyone at the White House or on the campaign.”

Asked if the issue had come up during his time at the White House, Mr. Burton said, “Outside groups were obviously a topic of conversation” there, but “We decided to do this on our own, after we left the White House and spent a considerable amount of time thinking about it.”

He said the groups were planned strictly as a reaction to the formation of groups by Mr. Rove and the Koch family, among others, adding, “We don't think progressives should live by a different set of rules than conservatives.”

Advisers to the groups include Harold Ickes, a former Clinton White House deputy chief of staff; Ellen Malcolm, founder of Emily's List, which supports candidates favoring abortion rights; and Robert McKay, chairman of Democracy Alliance, which took a leading role in organizing liberal groups.

from the Wall Street Journal, 2010-Oct-10:

Shutting Up Business
Democrats unleash the IRS and Justice on donors to their political opponents.

If at first you don't succeed, get some friends in high places to shut your opponents up. That's the latest Washington power play, as Democrats and liberals attack the Chamber of Commerce and independent spending groups in an attempt to stop businesses from participating in politics.

Since the Supreme Court's January decision in Citizens United v. FEC, Democrats in Congress have been trying to pass legislation to repeal the First Amendment for business, though not for unions. Having failed on that score, they're now turning to legal and political threats. Funny how all of this outrage never surfaced when the likes of Peter Lewis of Progressive insurance and George Soros helped to make Democrats financially dominant in 2006 and 2008.

Chairman Max Baucus of the powerful Senate Finance Committee got the threats going last month when he asked Internal Revenue Service Commissioner Douglas Shulman to investigate if certain tax exempt 501(c) groups had violated the law by engaging in too much political campaign activity. Lest there be any confusion about his targets, the Montana Democrat flagged articles focused on GOP-leaning groups, including Americans for Job Security and American Crossroads.

Mr. Baucus was seconded last week by the ostensibly nonpartisan campaign reform groups Democracy 21 and the Campaign Legal Center, which asked the IRS to investigate whether Crossroads is spending too much money on campaigns. Those two outfits swallowed their referee whistle in the last two campaign cycles, but they're all worked up now that Republicans might win more seats. Crossroads GPS, a 501(c)(4) affiliate of American Crossroads supported by Karl Rove, is a target because it has spent millions already in this election cycle.

Last Tuesday, the liberal blog ThinkProgress, run by the Center for American Progress Action Fund, reported that the U.S. Chamber of Commerce had collected some $300,000 in annual dues from foreign companies. Since the money went into the Chamber's general fund, the allegation is that it could have been used to pay for political ads, which would violate a ban on foreign companies participating in American elections. The Chamber says it uses no foreign money for its political activities and goes to great lengths to raise separate funds for political purposes.

That didn't stop President Obama from raising the issue in a Maryland speech last week, saying that "groups that receive foreign money are spending huge sums to influence American elections." Within hours of the ThinkProgress report, the bully boys at MoveOn.org asked the Department of Justice to launch a criminal investigation of the Chamber. In a letter to the Federal Election Commission, Minnesota Senator Al Franken expressed his profound concern that "foreign corporations are indirectly spending significant sums to influence American elections through third-party groups." From the man who stole his Senate election in a dubious recount, this is rich.

Even Mr. Franken admits in his letter that the Chamber's commingling of funds in its general accounts is not "per se illegal," but apparently he thinks it's fine to unleash federal investigators because the Chamber cash might contribute to the defeat of fellow Democrats.

The outrage over the Chamber is especially amusing considering the role of foreigners in U.S. labor unions. According to the Center for Competitive Politics, close to half of the unions that are members of the AFL-CIO are international. One man's corporate commingling is another's union dues.

Unions and liberal groups are hardly cash poor this year in any case. The Campaign Media Analysis Group looked at the combined spending of candidates, their parties and outside groups and found that Democrats outspent Republicans $47.3 million to $40.8 million in a recent 60-day period.

Democrats claim only to favor "disclosure" of donors, but their legal intimidation attempts are the best argument against disclosure. Liberals want the names of business donors made public so they can become targets of vilification with the goal of intimidating them into silence. A CEO or corporate board is likely to think twice about contributing to a campaign fund if the IRS or prosecutors might come calling. If Democrats can reduce business donations in the next three weeks, they can limit the number of GOP challengers with a chance to win and reduce Democratic Congressional losses.

The strategy got a test drive in Minnesota earlier this year after Target Corporation donated $100,000 cash and $50,000 of in-kind contributions to an independent group that ran ads supporting the primary candidacy of Republican gubernatorial candidate Tom Emmer. MoveOn.org accused the company of being anti-gay, organized a petition, and crafted a TV ad urging shoppers to boycott Target stores. Target made no further donations, and other companies that once showed an interest have since declined to contribute.

***

Then there's the curious reference to the tax status of Koch Industries by White House chief economist Austan Goolsbee. In a late August conference call with reporters, Mr. Goolsbee cited the closely-held Koch as an example of "really giant firms" that pay no corporate income tax because they file under other tax rules. But how in the world would Mr. Goolsbee know Koch's tax status? Could his knowledge be related to the White House-liberal campaign against Koch for contributing to Americans for Prosperity, a group that is supporting free-market candidates for Congress this year?

In an August 9 speech, Mr. Obama personally trashed Americans for Prosperity, hinting that it was funded by "a big oil company." He had to mean Koch, which makes no secret of its support for Americans for Prosperity.

The White House didn't respond to queries about Mr. Goolsbee's remark for weeks until GOP Senators requested an investigation. The Treasury's inspector general for tax matters has since announced such a probe, and last week White House spokesman Robert Gibbs finally got around to explaining that Mr. Goolsbee's statement "was not in any way based on any review of tax filings" and that he won't use the example again.

We're glad to hear it, but pardon our skepticism given the ferocity of this White House-led campaign against businesses that donate to political campaigns. Faced with electoral repudiation as the public turns against their agenda, Democrats are unleashing government power to silence their political opponents. Instead of piling on, the press corps ought to blow the whistle on this attempt to stifle political speech. This is one more liberal abuse of power that voters should consider as they head to the polls.

from Ars Technica, 2011-May-10, by Nate Anderson:

Revised 'Net censorship bill requires search engines to block sites, too

Surprise! After months in the oven, the soon-to-be-released new version of a major US Internet censorship bill didn't shrink in scope—it got much broader. Under the new proposal, search engines, Internet providers, credit card companies, and ad networks would all have cut off access to foreign "rogue sites"—and such court orders would not be limited to the government. Private rightsholders could go to court and target foreign domains, too.

As for sites which simply change their domain name slightly after being targeted, the new bill will let the government and private parties bring quick action against each new variation.

Get ready for the "PROTECT IP Act."

Targeting Google

A source in Washington provided Ars with a detailed summary of the PROTECT IP Act, which takes its acronym from "Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property." This beats the old acronym, COICA; who can be against protection? The actual legislation should be introduced shortly.

The bill is an attempt to deal with foreign sites which can be difficult for US enforcement to reach, even when those sites explicitly target US citizens.

The PROTECT IP Act makes a few major changes to last year's COICA legislation. First, it does provide a more limited definition of sites “dedicated to infringing activities.” The previous definition was criticized as being unworkably vague, and it could have put many legitimate sites at risk.

But what the PROTECT IP Act gives with one hand, it takes away with the other. While the definition of targeted sites is tighter, the remedies against such sites get broader. COICA would have forced credit card companies like MasterCard and Visa to stop doing business with targeted sites, and it would have prevented ad networks from working with such sites. It also suggested a system of DNS blocking to make site nominally more difficult to access.

The PROTECT IP Act adds one more entity to this list: search engines. Last week, when the Department of Homeland Security leaned on Mozilla to remove a Firefox add-on making it simple to bypass domain name seizures, we wondered at the request. After all, the add-on only made it easier to do a simple Google search, and we wondered "what the next logical step in this progression will be: requiring search engines to stop returning results for seized domain names?"

Turns out that's exactly what's being contemplated. According to the detailed summary of the PROTECT IP Act, this addition "responds to concerns raised that search engines are part of the ecosystem that directs Internet user traffic and therefore should be part of the solution."

Rightsholders also score a major victory with the new legislation, which grants them a private right of action—something Google publicly trashed as a terrible idea earlier this year. Copyright and trademark holders don't have to badger the government into targeting sites under the new bill; they are allowed to seek court orders directly, though these orders would only apply to payment processors and advertising networks (not to ISPs or search engines).

Help us out, please

The emphasis here is on forcing intermediaries to get involved in policing such sites. Rightsholders have had difficulty suing the millions of end users engaged in infringement, and they have had difficulty suing the sites themselves when they are based abroad. But MasterCard and Google? Those are easy, US-based targets who will comply will any law Congress passes.

The PROTECT IP Act goes even further than forcing these intermediaries to take action after a court order; it actively encourages them to take unilateral action without any sort of court order at all. The bill summary makes clear that ad networks and payment processors will be protected if they “voluntarily cease doing business with infringing websites, outside of any court ordered action.” If a search engine decides that the next YouTube is a copyright infringer—and rightsholders have often sued sites like Veoh and YouTube in the past—it can simply cut off advertising for that reason and be immunized under the law. So can Visa.

The bill also encourages everyone—domain name registries, search engines, payment processors, and ad networks—to cut off access to infringing sites that "endanger the public health." That is, online pharmacies (which are often hotbeds of counterfeiting).

Given the strong opinions elicited by the earlier COICA, the expansion of powers here is a bit surprising, but the continued presence of the legislation is not. That's because, no matter how much power and money Congress devotes to intellectual property, rightsholders are back every couple of years for more—as the NET Act, DMCA, Sonny Bono Term Extension Act, PRO-IP Act, and Anti-Counterfeiting Trade Agreement (ACTA) remind us. Each is "essential"—but somehow never quite enough.

from the Guardian of London, 2011-May-18, by Josh Halliday:

Google boss: anti-piracy laws would be disaster for free speech
Eric Schmidt claims search giant would fight attempts to restrict access to sites such as the Pirate Bay

Google's executive chairman, Eric Schmidt, warned on Wednesday that government plans to block access to illicit filesharing websites could set a "disastrous precedent" for freedom of speech.

Speaking to journalists after his keynote speech at Google's Big Tent conference in London, Schmidt said the online search giant would challenge attempts to restrict access to the Pirate Bay and other so-called "cyberlocker" sites that encourage illegal downloading – part of government plans to fight online piracy through controversial measures included in the Digital Economy Act.

"If there is a law that requires DNSs [domain name systems, the protocol that allows users to connect to websites] to do X and it's passed by both houses of congress and signed by the president of the United States and we disagree with it then we would still fight it," he added. "If it's a request the answer is we wouldn't do it, if it's a discussion we wouldn't do it."

Schmidt, who became Google's executive chairman last month after a decade as its chief executive, described website blocking as akin to China's restrictive internet regime.

"I would be very, very careful if I were a government about arbitrarily [implementing] simple solutions to complex problems," he said. "So, 'let's whack off the DNS'. Okay, that seems like an appealing solution but it sets a very bad precedent because now another country will say 'I don't like free speech so I'll whack off all those DNSs' – that country would be China.

"It doesn't seem right. I would be very, very careful about that stuff. If [the UK government] do it the wrong way it could have disastrous precedent setting in other areas."

Speaking at the same conference, the culture minister, Jeremy Hunt, said plans to block access to illicit filesharing websites were on schedule. He admitted that a "challenge" of the controversial measure is deciding which sites get blocked.

Ofcom is due to present its report on the practicability of the site-blocking measures included in the DEA to Hunt in the coming weeks.

Responding to questions about Facebook secretly hiring the public relations firm Burson-Marsteller to plant scare stories over Google's privacy policies in the US media, Schmidt said he would not comment.

However, he added: "A lot of people – not Google employees – have looked at these claims and generally found them to be false."

from IT World / IDG News Service, 2011-May-5, by Robert McMillan:

Mozilla defies DHS, won't remove Mafiaa Fire add-on
The open-source browser maker has asked for proof that its redirecting add-on is illegal

The open-source Mozilla project said Thursday it won't comply with a U.S. Department of Homeland Security request to remove a Firefox add-on that helps redirect Web traffic for sites that have been seized by the government.

At issue is the Mafiaa Fire add-on, designed to reduce the effectiveness of an antipiracy campaign by DHS's Immigration and Customs Enforcement (ICE) division. When users try to visit a website whose Internet domain has been seized by ICE, Mafiaa Fire redirects them to a working site set up to replace the seized domain.

That's a problem for the DHS, which is trying to knock these sites offline permanently. "The ICE Homeland Security Investigations unit alleged that the add-on circumvented a seizure order DHS had already obtained against a number of domains," wrote Harvey Anderson, vice president and general counsel for Mozilla, in a blog post Thursday.

In recent months, ICE has shut down a large number of websites suspected of selling illegally copied music, movies or counterfeit products. Some free-speech experts have said the seizures may violate freedom-of-speech protections in the U.S. Constitution.

The DHS did not come to Mozilla with a court order, and the group pushed back, asking for proof that Mafiaa Fire is illegal, or at least a legal reason justifying the removal of the add-on.

"To date we've received no response from Homeland Security nor any court order," Anderson said. While content companies see obvious reasons to keep these sites offline, Mozilla sees it as a question of government censorship, and whether agreeing to these informal requests might somehow "threaten the open Internet," Anderson said.

The DHS's ICE division could not immediately be reached for comment Thursday. Neither could Mafiaa Fire developers nor Mozilla's Anderson.

from TechDirt.com, 2011-Jun-2, by Mike Masnick:

The One Situation Where Record Labels Fear Federal Copyright: Old Sound Recordings
from the keep-the-public-domain-away! dept

Last year, we were among those who noted a significant problem for sound recordings from about a century ago. While under federal copyright law, works published before 1923 are in the public domain, when it comes to sound recordings, it's a different story. That's because, for quite some time, Congress did not even believe copyright law could apply to sound recordings (which is kind of funny when you realize how many in the recording industry now seem to assume that copyrights on recordings are some sort of birthright). Instead, however, various state laws covered the gap... and did so by creating copyright laws that were even more ridiculous than the federal one. Because of that, many old sound recordings may never enter the public domain, or if they do it won't be for another 50 or 60 years. And, in the meantime, many of those recordings will disappear.

This is of big concern to those who wish to preserve and share the culture from a century ago. After this issue started to get some attention, the Copyright Office agreed to look into things and just held some hearings on the issue. Copycense attended the event and shared copious tweets on the events. As an experiment, I'm going to try to collate some of the more interesting tweets, embedded below, but provide commentary here. There are a few key statements that were made that I'll address in separate posts, but this one will cover the general discussions held during the day.

What becomes clear is that there's a big divide between the legacy industry (record labels & publishers) and librarians and cultural researchers who fear that these works are dying. The people actually concerned about preserving the works are horrified at what's happening, noting that culture is disappearing -- and predominantly impacting "people of color," whose work would be freely available for all to hear if their recordings had been covered by traditional copyright, or done in any other country. Others point out that if librarians can't preserve these works, they may disappear forever.

The response from the music business guys is ridiculous -- but expected. They insist that covering these works under traditional copyright would harm artists (seriously). Rich Bengloff, the head of A2IM (mini-RIAA), insisted that covering these works under federal copyright law would "bring less investment to roots music." Huh? How does that make any sense? The RIAA also worried that there would be "costs" associated with covering these works by copyright, and that it would "raise ownership questions." This is laughable. There are already "ownership" questions, which is why we're stuck in this quagmire in the first place. The RIAA pointed out that "we have concerns that federalization would negatively affect economic value."

That, of course, is ridiculous. First, the vast majority of the works we're talking about no longer are being marketed in any way shape or form. They're disappearing. The few works that are still an issue would still have federal copyright law, which is already pretty strict. The only works that would really have a change are those from before 1923, and that's fine. It's what's good about the public domain. Thankfully, one of the representatives from library groups pointed out that work that goes into the public domain "increases value to the public," which is what copyright is supposed to be about. Furthermore, as others quite reasonably pointed out, just because something is in the public domain, it doesn't mean you can't make money off of it. Just look how many publishers make money selling public domain works.

The RIAA then tried a different tack, insisting that the libraries concerned about all this are being silly, because "according to our research," no library has been sued over this issue. Isn't that comforting? Of course, you never know when a lawsuit might be filed, and the law clearly allows one to be filed. Most libraries wouldn't take that risk. Thankfully, the brand new Registrar of Copyrights, Maria Pallante, was quick to point out that simply wishing libraries become less risk averse is not a reasonable answer here.

Hilariously, the National Music Publishers Association people (NMPA) responded to a question about how taking away 50 different state laws, and moving these works under the single, well-known, standard of federal copyright law would make things "more confusing" by claiming that it would create "uncertainty." Huh?!? On the one hand, we have 50 different, confusing and rarely tested laws. On the other, we have federal copyright law and loads of caselaw. And the NMPA is actually claiming that federal copyright law would be more confusing? Even more ridiculous is Bengloff's claim that because under those state laws most works will go into the public domain in 2067, it "makes it easy to know what we're working with." Except we also know what we're working with under federal copyright law.

Later, Bengloff claims that there's a risk because labels have "invested millions of dollars" in these works. Again, this is misleading and ridiculous. The works still covered by federal copyright would remain in the control of the copyright holders. Furthermore, someone from the Library of Congress properly pointed out that the LOC (and other libraries) have also invested millions in trying to preserve these works. A representative from libraries reminded people that the public is a stakeholder here as well (though apparently not directly represented at the hearing).

Finally, at the end of the day, the real issue makes itself known. The labels and publishers want to avoid "federalization" because they know that this would bring back "termination rights" for the musicians themselves. As you hopefully know, the labels have been vigorously fighting the fact that the musicians themselves can reclaim their own copyrights by "terminating" the copyright assignment. A decade ago, the RIAA was able to sneak a law through Congress (literally by adding a line in the middle of the night that no one noticed until after the bill passed) that turned all such recordings into "works made for hire," which removed termination rights. An outcry from artists (for once) resulted in Congress fixing that "mistake" quickly, but the labels are still infatuated with this, and are gearing up for legal fights over termination rights soon.

It appears the real issue here is that under these state laws, there are no termination rights, meaning the artists themselves can't reclaim the copyrights, and the labels and publishers get to hang onto them for a few more decades. Putting things under federal copyright law would open up an opportunity for artists to get their copyrights back. And, we can't have that.

What's really appalling here is that the label/publisher representatives still pretend to represent artists here -- and one even declares that the labels interests really are aligned with artists' interests, when the subtext of this debate shows that's not true at all.

from the Daily Mirror of London, 2011-Apr-25, by Steve Myall:

Imogen Thomas: Tory MP blurts out Premier League star's name on Have I Got News For You

A TOP Tory MP blurted out on a TV show the identity of the Premier League star who had an affair with Imogen Thomas – forcing the BBC to bleep her comments.

Louise Bagshawe, 39, a novelist and MP for Corby, came close to breaching a High Court injunction on current affairs quiz show Have I Got New For You.

She had just been shown four blacked-out images of people who have taken out injunctions in the “odd one out” round.

Miss Bagshawe said: “You're not allowed to know who they are.

“They may or may not have done something with ladies who are not their wives. One of them definitely doesn't rhyme with… even though he is a footballer.” Ian Hislop & MP Louise Bagshawe (Pic:BBC)

The BBC muted the sound while team captain Ian Hislop said: “Can somebody call the police. I'm sitting here next to a Conservative MP who's trying to break a series of super- injunctions. I'm absolutely appalled.”

Miss Bagshawe said she was considering using parliamentary privilege to name in the Commons the 30 footballers, actors and TV presenters who have won injunctions in recent weeks.

But if her comments had been broadcast on Friday she may have breached the injunction and faced a prison sentence.

Oblivious to the row her comments sparked, she later tweeted: “Thoroughly enjoyed #HIGNFY, laughed so much thought I might get a stitch.”

She later said: “The BBC were rightly cautious. I mumbled something that may or may not have rhymed with this man's name. I wasn't breaking the injunction. I had no desire to go to jail.”

Tory leader David Cameron has accused judges of using the Human Rights Act to usher in a privacy law by the back door.

The BBC declined to comment.

from Gulf News of Dubai, 2011-May-1, by Abdul Nabi Shaheen:

Royal decree issued to amend Saudi media law
Saudi Press and Publications Law protects religious figures from being targeted

Riyadh: In what is seen as a move to protect senior figures in religious establishment and other senior public officials amid growing media and internet criticism, the Saudi monarch King Abdullah Bin Abdul Aziz on Friday issued amendments to the Saudi Press and Publications Law.

The royal decree amended five articles in the Law which was issued in 2000.

One of the amendments stipulates that responsible persons in the publishing field shall be bound by objective and constructive criticism based on facts and that this criticism should be for the public interest.

The amendments make it a crime to publish any material that damages the reputation or cause insult to the kingdom's grand mufti, members of the Council of Senior Religious Scholars and government officials.

Moreover, the amendments stipulate that those in charge of publishing should not publish any materials violating Sharia, inciting division between citizens, promoting crimes or damaging the homeland's public affairs.

Penalty

According to the royal decree, whoever is found guilty can be fined up to 500,000 Saudi riyals (Dh490,000) or 1 million riyals for repeat offenders and/or a ban on their works being published or appearing in the press.

It added that establishments found guilty of violating this law will be asked to shut down temporarily or permanently. Moreover, if the violation is not deemed serious enough for closure, the establishment which publishes false information or accusations will be asked by law to publish retractions and apologies.

A special court will look at violations that are deemed to be an affront to Islam, the amendments said.

from the Wall Street Journal, 2011-Mar-7, by Paul Sonne, Max Colchester and David Roman:

Plastic Surgeon and Net's Memory Figure in Google Face-Off in Spain

In 1991, the Spanish newspaper El País published an article centered on a dispute between Madrid plastic surgeon Hugo Guidotti Russo and one of his patients over an allegedly botched breast surgery. The headline: "The Risk of Wanting to Be Slim."

Nearly 20 years later, Dr. Guidotti Russo, backed by Spain's privacy regulator, contends that the tale of the dispute is personal information and wants to purge the article from Google, where it shows up on the first page of results when his name is searched.

His complaint accounts for one of about 80 instances in which the Spanish regulator has told U.S.-based Google Inc. to remove personal information about individuals from its search results.

Google says it plans to challenge most of those orders, arguing that the agency is overstepping its authority.

In January, a Spanish court heard the first five complaints that Google is contesting, including Dr. Guidotti Russo's. Now, after weeks of deliberation, the Spanish court is considering referring the matter to the European Court of Justice in Luxembourg to clarify European privacy law, according to a person familiar with the situation.

"We're pleased that the [Spanish] court is considering asking guidance from Europe's top court on whether Spain's [data-protection agency] has overridden European law. It shows that key issues are at stake," Peter Barron, Google's head of European external relations, said in a statement.

Such a referral could pave the way for a major Europe-wide ruling on the indexing of personal data on the Web—but it also could delay a resolution for years. European lawmakers in Brussels, meanwhile, are working on an overhaul of the same European Union data-protection law the Luxembourg court could be asked to interpret.

The legal wrangle between Google and the Spanish regulator comes amid a broader debate about how much control individuals should have over their private data and reputations in the era of the Internet.

A movement has cropped in parts of Europe to create a "right to be forgotten," which would let individuals excise personal information from the Web on privacy grounds. The European Commission, as part of its data-protection overhaul, has proposed recognizing such a right. France's Senate has also approved similar proposals, which have yet to be ratified by the National Assembly.

Though freedom-of-expression provisions of Spanish law protect newspapers, legal gazettes and other publishers from government censors, the Spanish data regulator contends the protections don't extend to Internet search engines like Google.

The idea is that the Internet shouldn't retain, or remember, a citizen's personal data and leave it accessible in perpetuity.

The Spanish regulator says that in situations where having material included in search results leads to a massive disclosure of personal data, the individual concerned has the right to ask the search engine to remove it on privacy grounds. Google calls that censorship.

"Spain has always taken an extremely strong line over privacy," says Malcolm Bain, a lawyer at ID Law Partners in Barcelona who specializes in information-technology law.

That stance could benefit people like Dr. Guidotti Russo. The El País article from two decades ago says he was accused of medical malpractice in connection with the allegedly botched surgery, and that the 21-year-old plaintiff the equivalent of around $4 million in damages; it isn't clear whether she received any money. El País, which identified the plaintiff in its article only by her initials, says it stands by its article.

The newspaper isn't being asked to remove it from its own website.

Dr. Guidotti Russo, who still has his practice, says he was cleared of the charge of reckless endangerment, but declined to discuss the matter further.

The Spanish court where the legal dispute described in the 1991 article took place said the records of the proceedings were impossible to retrieve because they dated from before the country digitized court records.

Dr. Guidotti Russo's lawyer, Gabriel Gómez, says his client was cleared of any criminal wrongdoing. He argues, however, that the outcome of the 20-year-old case isn't relevant.

Mr. Gómez says that what's at stake is an individual's right to remove personal information he objects to—whether it is accurate or not.

Javier Aparicio, a lawyer representing Google, said at a Jan . 19 Spanish court hearing that Spain is the only country where the company is forced to remove links to Web pages that don't have illegal content of any kind.

In other countries, courts have asked the company to delete links to pages with material such as illegal pornography or bootleg movies or songs.

With the EU's 15-year-old data-protection law slated for overhaul within the next year or two, the issue of how to reconcile the freedom of expression with the right to privacy has become a recurrent theme in Europe. Viviane Reding, EU commissioner for justice, fundamental rights and citizenship, has introduced her own version of a right to be forgotten.

Her proposal, which is still taking shape, could allow Internet users to force websites like Facebook Inc. to permanently erase personal data about them, such as photos and e-mail addresses.

"God forgives and forgets," Ms. Reding said in a November speech. "But the Web never does." Her proposal will be up for debate for at least a year before EU lawmakers vote on a final draft.

Some privacy specialists say there is a difference between information that is part of the public record and personal data or photos submitted to a social-networking site.

"It may be that there should be a right to have your name removed from a social network where you volunteered it in the first place," says Richard Thomas, a former British data-privacy commissioner, who is now a strategy adviser to international law firm Hunton & Williams LLP. "But that's rather different from deleting altogether a record, for example, of a crime that you committed or something embarrassing from your past."

from TorrentFreak.com, 2011-Mar-7, by "enigmax":

Fox DMCA Takedowns Order Google to Remove Fox DMCA Takedowns

Sending DMCA takedown notices in bulk has become increasingly fashionable during recent years but thanks to the database at Chilling Effects, we are able to see who is sending what to whom. As concerns mount over the amount of checking carried out before items are taken down, it appears that Fox has managed to get Google to delist DMCA complaints on Chilling Effects, which were originally sent by Fox themselves and submitted to Chilling Effects by Google.

The Chilling Effects web archive was founded in 2001 as a response to the usually secretive practice of sending so-called `takedown notices' to have content removed from the web. This, according to the activists involved, was having a `chilling effect' on free speech.

In a show of openness, big companies such as Google, Yahoo, Twitter and Digg began sending DMCA takedown notices they received to Chilling Effects. In 2010 the clearing house received more than 12,000 such cease-and-desist notices which in turn contained thousands of links to content to be removed. At times this archive makes fascinating reading, as highlighted today by occasional TorrentFreak contributor SearchFreak.

The URL http://chillingeffects.org/dmca512c/notice.cgi?NoticeID=31773 shows a DMCA notice sent by Twentieth Century Fox Film Corporation to Google which contains a list of URLs which allegedly link to the movie Avatar. Fox demanded that Google should take them all down from its index, which it appears to have done.

However, if one enters this URL into a Google search, the only results listed are where other pages refer to this URL. The actual page with this URL is nowhere to be found. Indeed, as can be seen from the screenshot below, Google has removed the result due to a DMCA takedown complaint.

Fortunately we can see what this complaint was about and who sent it by, ironically, going to ChillingEffects. The DMCA complaint in question was sent by Fox to Google and contains dozens of links its anti-piracy division has culled from the web, allegedly linking to their movie Avatar.

However, deep into the complaint Fox has demanded that Google take down links to two pages on Chilling Effects (1) (2). Their crime? Containing links to the Avatar movie.

So, let's have a little recap since this is becoming like an episode from Soap.

Chilling Effects is setup to stop the `chilling effects' of Internet censorship. Google sees this as a good thing and sends takedown requests it receives to be added to the database.

Fox sends takedown requests to Google for pages which the company says contain links to material it holds the copyright to. Those pages include those on Chilling Effects which show which links Fox wants taken down.

Google delists the Chilling Effects pages from its search engine, thus completing the circle and defeating the very reason Chilling Effects was set up for in the first place.

Fox has repeated this somewhat ridiculous `error' several times (1) (2) (3) (4) but they are not on their own. It seems that the UFC have also been trying to have ChillingEffects notices removed (1) (2) (3) (4) (5) but currently they remain listed by Google.

While the Fox takedowns happened a while ago, those sent by UFC are just a few weeks old. Let's hope that when receiving these requests in future Google simply throws them in the trash, where they belong.

from the New York Times Media Decoder blog, 2010-Nov-17, by Brian Stelter:

Senator Asks: Can't Fox and MSNBC Just Go Away?

There's a part of Senator Jay Rockefeller, Democrat of West Virginia, that would like to see Fox News Channel and MSNBC vanish.

At a Senate committee hearing about television retransmission consent on Wednesday, Mr. Rockefeller spoke broadly about the ways he believes television is ailing, and in doing so, he singled out the “endless barking” of cable news.

He said: “There's a little bug inside of me which wants to get the F.C.C. to say to Fox and to MSNBC, `Out. Off. End. Goodbye.' It would be a big favor to political discourse; to our ability to do our work here in Congress; and to the American people, to be able to talk with each other and have some faith in their government and, more importantly, in their future.”

There is little the Federal Communications Commission can say about Fox News or MSNBC since the channels are on cable, not delivered over the broadcast airwaves.

The comments about Fox News and MSNBC were not in Mr. Rockefeller's prepared remarks. In those remarks, he also said:

When it comes to developing content, our entertainment machine is too often in a race to the bottom. Even worse, our news media has all but surrendered to the forces of entertainment. Instead of a watchdog that is a check on the excesses of government and business, we have the endless barking of a 24-hour news cycle. We have journalism that is always ravenous for the next rumor, but insufficiently hungry for the facts that can nourish our democracy. As citizens, we are paying a price.

Beyond the news media, Mr. Rockefeller also questioned why consumers have to buy bundles of channels, rather than ordering the channels they want and nothing else.

“The old adage of `500 channels and nothing on' has never been so true as it is today,” he said.

from NewsMax, 2010-Nov-24:

Sharpton Wants FCC to Ban Limbaugh

Liberal firebrand Rev. Al Sharpton is telling audiences that the Federal Communications Commission should take Rush Limbaugh off the airwaves because of perceived offenses toward racial minorities and other groups.

The attack was only the latest in a series of attacks by Democrats, including President Obama, who suggest that America's political discourse is being crippled by talk radio and cable news shows.

al,sharpton,rush,limbaugh,fccSpecifically, Sharpton suggested that the FCC should establish "guidelines" or "standards" to regulate speech.

"You've got to remember that those stations that Rush Limbaugh is on and others are regulated by FCC, granted by FCC; they go back to them to get waivers," Sharpton said on his own radio show on Nov. 19th

"They go back to them to get consolidation," Sharpton continued. "They have the right to set standards. That does not impair your right to speak what you believe, but it does say that you are not going to do that to offend groups of Americans based on their race, their gender, their sexual status - none of that."

Sharpton's broadside followed a similar attack last week by Sen. Jay Rockefeller. The West Virginia Democrat went after both right-leaning Fox News and left-leaning MSNBC.

Said Rockefeller during a Senate hearing: "There's a little bug inside of me which wants to get the FCC to say to Fox and to MSNBC, 'Out. Off. End. Goodbye.' It would be a big favor to political discourse; to our ability to do our work here in Congress; and to the American people, to be able to talk with each other and have some faith in their government and, more importantly, in their future."

And earlier this year President Obama himself lamented what he described as the sad state of political discourse hampered by iPods and cable TV shows.

"And with iPods and iPads; and Xboxes and PlayStations - none of which I know how to work - information becomes a distraction, a diversion, a form of entertainment, rather than a tool of empowerment, rather than the means of emancipation," Obama said during a commencement address at Hampton University in Virginia. "So all of this is not only putting pressure on you; it's putting new pressure on our country and on our democracy."

Conservatives and civil libertarians are concerned by what they see as a growing tolerance by liberals to regulate and even censor the airwaves, especially as outlets like Fox News and shows like Limbaugh's grow ever more popular.

Limbaugh is the most listened to radio host in the nation with more than 15 million weekly visitors. Fox News continues to trounce its cable news rivals CNN and MSNBC in ratings.

"This is scary stuff," lamented an editorial in Investors Business Daily. "Strong speech has always been quintessentially American.

With the airwaves and cyberspace replacing soapboxes, it's more vital than ever to protect it against politicians favoring a new 'fairness doctrine' that would keep voters from being armed with the information and analysis that can be used to unseat them."

from the New York Times, 2011-Mar-21, printed 2011-Mar-22, p.A4, by Sharon LaFraniere and David Barboza:

China Tightens Censorship of Electronic Communications

BEIJING — If anyone wonders whether the Chinese government has tightened its grip on electronic communications since protests began engulfing the Arab world, Shakespeare may prove instructive.

A Beijing entrepreneur, discussing restaurant choices with his fiancée over their cellphones last week, quoted Queen Gertrude's response to Hamlet: “The lady doth protest too much, methinks.” The second time he said the word “protest,” her phone cut off.

He spoke English, but another caller, repeating the same phrase on Monday in Chinese over a different phone, was also cut off in midsentence.

A host of evidence over the past several weeks shows that Chinese authorities are more determined than ever to police cellphone calls, electronic messages, e-mail and access to the Internet in order to smother any hint of antigovernment sentiment. In the cat-and-mouse game that characterizes electronic communications here, analysts suggest that the cat is getting bigger, especially since revolts began to ricochet through the Middle East and North Africa, and homegrown efforts to organize protests in China began to circulate on the Internet about a month ago.

“The hard-liners have won the field, and now we are seeing exactly how they want to run the place,” said Russell Leigh Moses, a Beijing analyst of China's leadership. “I think the gloves are coming off.”

On Sunday, Google accused the Chinese government of disrupting its Gmail service in the country and making it appear as if technical problems at Google — not government intervention — were to blame.

Several popular virtual private-network services, or V.P.N.'s, designed to evade the government's computerized censors, have been crippled. This has prompted an outcry from users as young as ninth graders with school research projects and sent them on a frustrating search for replacements that can pierce the so-called Great Firewall, a menu of direct censorship and “opinion guidance” that restricts what Internet users can read or write online. V.P.N.'s are popular with China's huge expatriate community and Chinese entrepreneurs, researchers and scholars who expect to use the Internet freely.

In an apology to customers in China for interrupted service, WiTopia, a V.P.N. provider, cited “increased blocking attempts.” No perpetrator was identified.

Beyond these problems, anecdotal evidence suggests that the government's computers, which intercept incoming data and compare it with an ever-changing list of banned keywords or Web sites, are shutting out more information. The motive is often obvious: For six months or more, the censors have prevented Google searches of the English word “freedom.”

But other terms or Web sites are suddenly or sporadically blocked for reasons no ordinary user can fathom. One Beijing technology consultant, who asked not to be identified for fear of retribution against his company, said that for several days last week he could not visit the Web site for the Hong Kong Stock Exchange without a proxy. LinkedIn, a networking platform, was blocked for a day during the height of government concerns over Internet-based calls for protests in Chinese cities a few weeks ago, he said.

Hu Yong, a media professor at Peking University, said government censors were constantly spotting and reacting to new perceived threats. “The technology is improving and the range of sensitive terms is expanding because the depth and breadth of things they must manage just keeps on growing,” Mr. Hu said.

China's censorship machine has been operating ever more efficiently since mid-2008, and restrictions once viewed as temporary — like bans on Facebook, YouTube and Twitter — are now considered permanent. Government-friendly alternatives have sprung and developed a following.

Few analysts believe that the government will loosen controls any time soon, with events it considers politically sensitive swamping the calendar, including a turnover in the Communist Party's top leadership next year.

“It has been double the guard, and double the guard, and you never hear proclamations about things being relaxed,” said Duncan Clark, chairman of BDA China, an investment and strategy consultancy based in Beijing, and a 17-year resident of China. “We have never seen this level of control in the time I have been here, and I have been here since the beginning of the Internet.”

How far China will clamp down on electronic communications is unclear. “There's a lot more they can do, but they've been holding back,” said Bill Bishop, a Internet expert based in Beijing. Some analysts suggest that officials are exploring just how much inconvenience the Chinese are willing to tolerate. While sentiment is hard to gauge, a certain segment of society rejects censorship.

For many users, an inoperable V.P.N. is an inconvenience, not a crisis. But Internet consultants said interfering with an e-mail service on which people depend every day is more serious. “How people respond is going to be more intense, more visceral,” one consultant said.

Google began receiving complaints from Gmail users and its own employees in China about a month ago, around the time anonymous Internet posts urged people unhappy with the government to gather every Sunday. Some Gmail users found their service disconnected when they tried to send or save messages.

Engineers determined that there were no technical difficulties on Google's end, Google said; rather, the hand of the Chinese government was at work. China's Foreign Ministry did not respond Monday to calls or faxed questions about Google's statement.

Disrupting Web sites and Internet connections is a standard tactic in dealing with companies that fall out of government favor. Mark Seiden, an Internet consultant, said Chinese officials typically left the companies and users to guess the reason.

In the Google case, an article on the Web site of People's Daily, the Communist Party's official publication, offered a strong hint. The March 4 article, attributed to a netizen, called Google a tool of the United States government. Like Facebook and Twitter, the article said, Google has “played a role in manufacturing social disorder” and sought to involve itself in other nations' politics.

China has treated Google as a threat for some time. Last year, Google closed its search service and redirected Chinese users to Google's Hong Kong site after the company said China was behind a cyberattack aimed partly at Gmail accounts.

But Mr. Moses, the Beijing analyst, said the latest clampdown on electronic communications went further. “The model for this government is that every day is a new challenge and a new opportunity to show the strength of the state here,” he said. “There is clear confidence in the capability of the political authorities to maintain order.”

Jonathan Ansfield contributed reporting from Beijing, and Claire Cain Miller from San Francisco. Jonathan Kaiman and Li Bibo contributed research from Beijing.

from the New York Times, 2010-Nov-26, printed 2010-Nov-27, p.B2, by Ben Sisario:

U.S. Shuts Down Web Sites in Piracy Crackdown

In what appears to be the latest phase of a far-reaching federal crackdown on online piracy of music and movies, the Web addresses of a number of sites that facilitate illegal file-sharing were seized this week by Immigration and Customs Enforcement, a division of the Department of Homeland Security.

By Friday morning, visiting the addresses of a handful of sites that either hosted unauthorized copies of films and music or allowed users to search for them elsewhere on the Internet produced a notice that said, in part: “This domain name has been seized by ICE — Homeland Security Investigations, pursuant to a seizure warrant issued by a United States District Court.”

In taking over the sites’ domain names, or Web addresses, the government effectively redirected any visitors to its own takedown notice.

“ICE office of Homeland Security Investigations executed court-ordered seizure warrants against a number of domain names,” said Cori W. Bassett, a spokeswoman for ICE, in a statement. “As this is an ongoing investigation, there are no additional details available at this time.”

Among the domains seized were torrent-finder.com and those of three sites that specialized in music: onsmash.com, rapgodfathers.com and dajaz1.com. TorrentFreak, a news blog about BitTorrent — a file-sharing system that has tended to elude the authorities because it is decentralized — said that at least 70 other addresses had been seized, most belonging to sites related to counterfeit clothing, DVDs and other goods.

On Friday, torrent users were already discussing new sites that had popped up to serve them.

The takedown notices are similar to those that went up on nine sites in June as part of an initiative against Internet counterfeiting and piracy that the agency called Operation in Our Sites.

In announcing that operation, John T. Morton, the assistant secretary of ICE, and representatives of the Motion Picture Association of America called it a long-term effort against online piracy, and said that suspected criminals would be pursued anywhere in the world. “American business is under assault from counterfeiters and pirates every day, seven days a week,” Mr. Morton said. “Criminals are stealing American ideas and products and distributing them over the Internet.”

Ms. Bassett would not comment on whether the latest raids were part of Operation in Our Sites, and a spokesman for the Recording Industry Association of America, which represents the major recording labels, declined to answer questions.

The new seizures also come as a new bill, the Combating Online Infringements and Counterfeits Act, is making its way through Congress. The bill, which was approved by a Senate committee last week, would allow the government to shut down sites that are “dedicated to infringing activities.”

Critics have said the law is too broad, and could affect sites that have nothing to do with file-sharing; the Electronic Frontier Foundation, an online civil liberties group, has called it “an Internet censorship bill.” Waleed A. GadElKareem, who operated Torrent Finder from Egypt, said his site was shut down on Thursday without any notice.

“My Web site does not even host any torrents or direct-link to them,” Mr. GadElKareem wrote in an e-mail, adding that he only links to other sites. “I am sure something is wrong!”

He added that his server was up and running at a different address.

from the Washington Examiner, 2010-Sep-10, by Michael Barone:

Gangster government stifles criticism of Obamacare

"There will be zero tolerance for this type of misinformation and unjustified rate increases."

That sounds like a stern headmistress dressing down some sophomores who have been misbehaving. But it's actually from a letter sent Thursday from Health and Human Services Secretary Kathleen Sebelius to Karen Ignagni, president of America's Health Insurance Plans -- the chief lobbyist for private health insurance companies.

Secretary Sebelius objects to claims by health insurers that they are raising premiums because of increased costs imposed by the Obamacare law passed by Congress last March.

She acknowledges that many of the law's "key protections" take effect later this month and does not deny that these impose additional costs on insurers. But she says that "according to our analysis and those of some industry and academic experts, any potential premium impact . . . will be minimal."

Well, that's reassuring. Er, except that if that's the conclusion of "some" industry and academic experts, it's presumably not the conclusion of all industry and academic experts, or the secretary would have said so.

Sebelius also argues that "any premium increases will be moderated by out-of-pocket savings resulting from the law." But she's pretty vague about the numbers -- "up to $1 billion in 2013." Anyone who watches TV ads knows that "up to" can mean zero.

As Time magazine's Karen Pickert points out, Sebelius ignores the fact that individual insurance plans cover different types of populations. So that government and "some" industry and academic experts think the new law will justify increases averaging 1 or 2 percent, they could justify much larger increases for certain plans.

Or as Ignagni, the recipient of the letter, says, "It's a basic law of economics that additional benefits incur additional costs."

But Sebelius has "zero tolerance" for that kind of thing. She promises to issue regulations to require "state or federal review of all potentially unreasonable rate increases" (which would presumably mean all rate increases).

And there's a threat. "We will also keep track of insurers with a record of unjustified rate increases: Those plans may be excluded from health insurance Exchanges in 2014."

That's a significant date, the first year in which state insurance exchanges are slated to get a monopoly on the issuance of individual health insurance policies. Sebelius is threatening to put health insurers out of business in a substantial portion of the market if they state that Obamacare is boosting their costs.

"Congress shall make no law," reads the First Amendment, "abridging the freedom of speech, or of the press."

Sebelius' approach is different: "zero tolerance" for dissent.

The threat to use government regulation to destroy or harm someone's business because they disagree with government officials is thuggery. Like the Obama administration's transfer of money from Chrysler bondholders to its political allies in the United Auto Workers, it is a form of gangster government.

"The rule of law, or the rule of men (women)?" economist Tyler Cowen asks on his marginalrevolution.com blog. As he notes, "Nowhere is it stated that these rate hikes are against the law (even if you think they should be), nor can this 'misinformation' be against the law."

According to Politico, not a single Democratic candidate for Congress has run an ad since last April that makes any positive reference to Obamacare. The First Amendment gives candidates the right to talk -- or not talk -- about any issue they want.

But that is not enough for Sebelius and the Obama administration. They want to stamp out negative speech about Obamacare. "Zero tolerance" means they are ready to use the powers of government to threaten economic harm on those who dissent.

The closing paragraph of Sebelius' letter to AHIP's Karen Ignagni gives the game away. "We worked hard to change the system to help consumers." This is a reminder that the administration alternatively collaborated with and criticized Ignagni's organization. We roughed you up a little but we eventually made a deal.

The secretary goes on: "It is my hope we can work together to stop misinformation and misleading marketing from the start." In other words, shut your members up and play team ball -- or my guys with the baseball bats and tommy guns are going to get busy. As Tyler Cowen puts it, "worse than I had been expecting."

Michael Barone,The Examiner's senior political analyst, can be contacted at mbarone@washingtonexaminer.com. His column appears Wednesday and Sunday, and his stories and blog posts appear on ExaminerPolitics.com.

from the Wall Street Journal, 2010-Oct-23, by Seth Lipsky:

The Real Case for Defunding NPR
My quarrel with government subsidies is that they cast a chill over the markets in which entrepreneurs seek to raise capital for highbrow journalism.

At least one good thing has come out of National Public Radio's firing of Juan Williams. NPR's vice president had barely hung up the phone after informing Mr. Williams that he was being terminated—and refusing to meet with him, a long-time colleague, to discuss the matter—when the calls began for Congress to cut off funding for NPR entirely.

Bill O'Reilly, on whose broadcast Mr. Williams uttered the words that cost him his NPR job—he spoke of his fleeting fears when he gets on a plane and sees a person dressed in Muslim garb—called for "the immediate suspension of every taxpayer dollar going into NPR." Sarah Palin issued a Facebook posting called "Juan Williams: Going Rogue," in which she wrote: "If NPR is unable to tolerate an honest debate about an issue as important as Islamic terrorism, then it's time for 'National Public Radio' to become 'National Private Radio.'"

Then South Carolina Republican Sen. Jim DeMint issued a statement saying that he would introduce a bill to end federal funding of public broadcasting. Most significantly, the man who may be the next House Speaker, John Boehner, told National Review Online: "We need to face facts—our government is broke. Washington is borrowing 37 cents of every dollar it spends from our kids and grandkids. Given that, I think it's reasonable to ask why Congress is spending taxpayers' money to support a left-wing radio network—and in the wake of Juan Williams' firing, it's clearer than ever that's what NPR is."

All these sentiments strike me as eminently reasonable, but my own view of the contretemps is slightly different. I have no quarrel with NPR being a left-of-center news source or with the authority of NPR's president, Vivian Schiller, to fire Mr. Williams. The First Amendment right to decide what is aired on NPR—that is, the right that Congress is prohibited by the First Amendment from abridging—belongs not to the talent that wants to go on the air but to the owner of the radio network that airs them. The government and its subsidy receivers, as far as I'm concerned, can be as left-wing as the voters will put up with.

My quarrel with government subsidies to NPR—via grants from the federally funded Corporation for Public Broadcasting—is that they cast a chill over the markets in which private entrepreneurs seek to raise capital for what might be called highbrow journalism. It is hard to quantify this. But it is a conclusion that I have reached after more than two decades spent seeking to raise capital for privately-owned publications competing in this arena.

More than once I have been interrupted, while singing the song of quality journalism to a potential investor, to be asked, "Isn't this already being done by public broadcasting?"

In the instances when that or similar questions were put to me, I was not even seeking to raise capital for broadcasting but rather for small newspapers—the Jewish Forward, in the 1990s, and then the New York Sun. And I wasn't entirely hapless. Many millions of dollars were eventually invested in the two newspapers, and any failures they met were not the fault of the government, but were entirely my own.

I have often wondered, though, what effect the government subsidies have on the broader world, in broadcast and print, of quality journalism. I recognize that the percentage of NPR's funds coming from the taxpayers is but 1% or 2%, or between $1.5 million and $3 million. But whatever the scale, seed capital from a credible investor is an enormous help to any effort, and my own experience is that it would have been easier to raise capital had there been no government-funded competition.

These are questions for Congress to explore when it looks into whether to continue funding for NPR. It's been nearly two generations now since President Lyndon Johnson signed the Public Broadcasting Act of 1967. It's not clear to me, incidentally, what constitutionally enumerated power Congress was relying on to pass such an act. But leave that question aside. What has been the impact on the quality of privately funded journalism of the octopus that government funding of broadcasting helped create?

This question is all the more newsworthy because of the crisis that has overtaken journalism. Print newspaper circulation is, with some exceptions, down. The big television networks are, for the most part, in retreat. Enormous numbers of promising efforts are underway on the Internet. But the jury is out on whether they will find a widely applicable business model.

A small chorus is tuning up to demand not that the government get out of the way but that it actually step up its funding of the press. Last year a report—written by a former editor of the Washington Post, Leonard Downey, and issued under the auspices of the Columbia Journalism School—called for siphoning funds from the Federal Communications Commission's surcharge on phone bills into a Fund for Local News that would underwrite "worthy initiatives in local news reporting."

The president of Columbia University, Lee Bollinger, has emerged as a leading voice for pouring more government money into news gathering. How badly would that chill the capital markets for those who dream of privately funded news gathering, completely independent of oversight by Congress? My guess is that the effect would be a great deal more significant than those who have not been out trying to raise such capital might imagine.

That would be entirely consonant with the school of economics known as public choice theory, which views the government as having its own economic interests and the state as not a protector but a competitor of private enterprise.

Mr. Williams, a distinguished figure, has already landed on his feet, with a multi-year contract and an expanded role at Fox News. When the next Congress takes up the NPR question, I hope it considers the lesser lights who have to go out to raise capital to set up their own platforms. Who is going to give them a leg up if they are having to compete with the government of the United States?

Mr. Lipsky is founding editor of the New York Sun.

from the Wall Street Journal, 2010-Oct-25, by L. Gordon Crovitz:

The Feds vs. Fruit Juice
The FTC goes to war against those who promote the health benefits of the pomegranate.

These days, pomegranates are far down the pecking order of fruits, though some think it was a pomegranate, not an apple, which Eve offered to Adam. Fewer than 4% of Americans had tried the fruit before 2002, when marketing mavens Lynda and Stewart Resnick launched the 100% fruit juice they call POM Wonderful. It's since become a top seller, in its curvy hourglass-shaped bottle.

The Resnicks, who also owns the Teleflora and FIJI water businesses, invested in orchards in California in the 1980s. They've also commissioned research on the anti-oxidant properties of pomegranates—too much research, according to a Federal Trade Commission (FTC) complaint last month alleging deceptive advertising. "Any consumer who sees POM Wonderful products as a silver bullet against all diseases has been misled," said David Vladeck, who runs the agency's Bureau of Consumer Protection.

This is hyberbole—no POM ads claim the pomegranate can cure "all diseases." But the complaint is a stalking horse for the agency's more radical position: that health-food companies now need to get Food and Drug Administration approval for scientific claims, similar to the process pharmaceutical companies follow for drugs.

Ms. Resnick told me last week that the FTC complaint is "a 20th-century idea in a 21st-century world." She says that "there is so much information available that consumers can make up their own minds. They are smarter than the FTC gives them credit for."

POM has sued the FTC, alleging it went beyond its power to monitor deceptive advertising by requiring approval of the scientific accuracy of claims about food. The suit argues that the agency has no power to require "prior FDA approval regardless of whether or not the claims are true or supported by competent, reliable scientific evidence."

Marketing for POM is not a snake-oil pitch. For interested consumers, the product's website provides links to 55 studies, including 16 clinical trials, supported by the company, which hedges its claims by saying "preliminary results have been encouraging and many additional research studies are in progress."

Consumers who want to learn more about the research on the site get this pop-up warning: "You are now leaving the POM Wonderful website. The completed research and studies contained on the following website are provided as a service to the public. They are not intended to make express or implied health or disease claims, as POM Wonderful products are foods, not drugs. They also do not constitute labeling or advertising for any POM Wonderful product. Instead, they are intended solely for general educational and informational purposes."

Ms. Resnick says it's odd that regulators prefer consumers have less information. "One of the points of contention is that we should not be able to talk about our research at all. What motivates natural foods companies to do any research if you can't talk about it?" she says. "It's crazy." Even the advertisements that the FTC included in its complaint have caveats for consumers, with references to "preliminary medical studies" and "hopeful results."

The outspoken Ms. Resnick, who wrote a book last year about marketing called "Rubies in the Orchard," says she'll fight the FTC. "One of the beauties of being privately held is that you can make decisions that do not look so good today but that build your tomorrow," she says. For publicly traded companies with short-term pressures from analysts, "even if you're right you have to settle."

"If we were going to lie," Ms. Resnick says with a laugh, "we'd do what some supplement companies do, by spending a couple of hundred thousand dollars on a silly research project. Why would we spend $35 million on research?" She remains confident that research will show that the benefits of pomegranates include helping reduce heart disease and prostate cancer.

In the meantime, POM recently launched a series of television commercials that avoids scientific claims. One features a scantily clad Eve and another shows a muscled warrior, both with bottles of POM. The information-suppressing FTC is happier with advertising based on sex appeal than advertising based on science.

A smarter approach would be to encourage companies to support strong research, disclose the results and let consumers weigh the findings. The worst thing that can happen with the pomegranate is that people may decide a fruit drink is healthier than, say, a flavored soda.

from the Associated Press, 2010-Oct-14, by Tini Tran, with Min Lee in Hong Kong contributing:

China says backers of Nobel winner support crime

BEIJING — Awarding the Nobel Peace Prize to imprisoned dissident Liu Xiabo encouraged crime in China, the government said Thursday, while telling his supporters to stop interfering in his case.

China has been issuing angry statements and rejecting calls for Liu's release since the Norwegian Nobel Committee honored him Oct. 8 for his more than two decades of advocacy of human rights and peaceful democratic change that started with the demonstrations at Beijing's Tiananmen Square in 1989.

The 54-year-old literary critic is serving an 11-year prison term after being convicted of inciting subversion for his role in writing an influential 2008 manifesto for political reform.

"Liu Xiaobo is a convicted criminal for violating the laws of China. Awarding the Nobel Peace Prize to such a person is equivalent to encouraging crimes in China. It also constitutes a violation of China's judicial sovereignty," Foreign Ministry spokesman Ma Zhaoxu said.

Numerous countries, including the United States, have asked for Liu's release. On Thursday, Japanese Prime Minister Naoto Kan guardedly said it would be "desirable" for China to free Liu, but stopped short of specifically calling for the imprisoned dissident's release.

"I wonder what their true intention is. Is it because they resent China's development path and hate China's political system?" Ma said at a regular news conference.

He accused the Norwegian Nobel Committee of being biased and said "Western governments had no right to interfere" in China.

Liu's winning of the peace prize has caused a diplomatic rift between China and Norway, even though the Norwegian government is not involved in the selection of the winner.

China has canceled a string of meetings with Norwegian officials, and Oslo has pushed Beijing to lift restrictions imposed on Liu's wife, Liu Xia.

The country's state-controlled media have attacked Liu Xiaobo's supporters, with the Global Times issuing an editorial Thursday railing against "the endless ideological wars against China."

It said the peace prize was part of a "concerto supplemented by various NGOs, economic identities and international organizations orchestrated by the developed countries" that hoped to press China to surrender its economic interests.

In the semiautonomous Chinese territory Hong Kong, several pro-democracy lawmakers showed solidarity with Liu on Thursday, displaying his picture in the legislature and wearing headbands inscribed with messages calling for his release.

Lawmaker Leung Kwok-hung asked Hong Kong Chief Executive Donald Tsang to comment on Liu's Nobel award, but the Beijing-backed official declined to do so.

"I've never heard of a leader declining comment during question-and-answer time," Leung retorted. Later, another opposition lawmaker, Albert Chan, held up Liu's portrait as he berated Tsang for dodging the question. Both legislators were kicked out for disrupting order.

The former British colony, governed under a separate system, enjoys freedom of speech, and activists have held several protests at the central Chinese government's liaison office in Hong Kong.

from Reuters, 2011-Jul-4, by Jason Subler and Georgina Prodhan, with additional reporting by Melanie Lee and Samuel Shen and editing by Matt Driskill and Louise Heavens:

UPDATE 4-Baidu picks Microsoft for English search

SHANGHAI/LONDON - China's Baidu is to partner with Microsoft for English-language search, giving the U.S. software giant a chance to expand its tiny Web presence in a market Google has stepped back from, and helping the Chinese company's international ambitions.

The tie-up will direct English searches from Baidu to Microsoft's Bing, which will deliver the results back to Baidu's Web pages, Baidu said in an emailed statement on Monday.

Baidu has about 80 percent of the search market in China -- a nation with almost half a billion Internet users and still only about 30 percent penetration -- after Google left mainland China in a high-profile fallout with Beijing over censorship.

Bing -- which filters out results in China relating to controversial subjects, such as political dissidents, Taiwan or pornography, to be able to operate in the country -- has a negligible share of the market, while Google has nearly 20 percent counting visits to its offshore sites.

Baidu spokesman Kaiser Kuo said Bing was not submitting to any further censorship or restrictions on its English search as a result of the deal "than they already do". Microsoft had no immediate comment beyond confirming the partnership.

Google is losing share to Baidu but is still number two in China. Worldwide, Google runs about 84 percent of Web searches, followed by Yahoo with 6 percent and Bing with 4 percent, according to analytics firm Net Applications.

"Google has potentially shot itself in the foot when it comes to cooperations in the Chinese market," said Daniel Knapp, analyst at media industry research firm Screen Digest.

"Chinese local players like Baidu would be very wary about striking up a relationship with Google, a rogue authority in the eyes of the Chinese authorities. Microsoft has always been very diffident -- for Baidu it's much safer," he added.

The new tie-up, due to be launched later this year, builds on existing cooperation between Baidu and Bing on mobile platforms and page results.

Baidu is beginning to diversify from its core search business to compete in the fast-growing segments of mobile and social networking. It also has a Japanese search service that is currently loss-making.

Search engine marketing company Greenlight said it saw the deal as positive for both sides, and could envisage the new partners dominating the Chinese search-advertising market.

"Whilst it represents an opportunity for Bing to make more money from the Chinese market, Baidu gets what it needs to expand overseas when it is ready to do so," said Greenlight Chief Operating Officer Andreas Pouros.

"Microsoft has entered the Chinese market slowly and has made some friends, in a way that the Chinese government will have no issue with. This should leave Baidu and Bing to control the Chinese search ad market without too much difficulty."

Baidu made $1.2 billion in online marketing revenues last year, up 78 percent from 2009. Microsoft's total online advertising revenue in fiscal 2010, including a small contribution from Bing, was $1.9 billion.

Some analysts were sceptical over how much demand there would be for English search on Baidu.

"It's a good thing, but I see very minimal impact for Baidu. I don't see a lot English keywords going through Baidu. It goes through Google," said Wallace Cheung, a Hong Kong-based analyst at Credit Suisse.

from AOL News, 2010-Jul-9, by Bruce Schneier:

Opinion: 3 Reasons to Kill the Internet Kill Switch Idea

Last month, Sen. Joe Lieberman, I-Conn., introduced a bill that might -- we're not really sure -- give the president the authority to shut down all or portions of the Internet in the event of an emergency. It's not a new idea. Sens. Jay Rockefeller, D-W.Va., and Olympia Snowe, R-Maine, proposed the same thing last year, and some argue that the president can already do something like this. If this or a similar bill ever passes, the details will change considerably and repeatedly. So let's talk about the idea of an Internet kill switch in general.

It's a bad one.

Security is always a trade-off: costs versus benefits. So the first question to ask is: What are the benefits? There is only one possible use of this sort of capability, and that is in the face of a warfare-caliber enemy attack. It's the primary reason lawmakers are considering giving the president a kill switch. They know that shutting off the Internet, or even isolating the U.S. from the rest of the world, would cause damage, but they envision a scenario where not doing so would cause even more.

That reasoning is based on several flawed assumptions.

Internet Without Borders

The first flawed assumption is that cyberspace has traditional borders, and we could somehow isolate ourselves from the rest of the world using an electronic Maginot Line. We can't.

Yes, we can cut off almost all international connectivity, but there are lots of ways to get out onto the Internet: satellite phones, obscure ISPs in Canada and Mexico, long-distance phone calls to Asia.

The Internet is the largest communications system mankind has ever created, and it works because it is distributed. There is no central authority. No nation is in charge. Plugging all the holes isn't possible.

Even if the president ordered all U.S. Internet companies to block, say, all packets coming from China, or restrict non-military communications, or just shut down access in the greater New York area, it wouldn't work. You can't figure out what packets do just by looking at them; if you could, defending against worms and viruses would be much easier.

And packets that come with return addresses are easy to spoof. Remember the cyberattack July 4, 2009, that probably came from North Korea, but might have come from England, or maybe Florida? On the Internet, disguising traffic is easy. And foreign cyberattackers could always have dial-up accounts via U.S. phone numbers and make long-distance calls to do their misdeeds.

Unpredictable Side Effects

The second flawed assumption is that we can predict the effects of such a shutdown. The Internet is the most complex machine mankind has ever built, and shutting down portions of it would have all sorts of unforeseen ancillary effects.

Would ATMs work? What about the stock exchanges? Which emergency services would fail? Would trucks and trains be able to route their cargo? Would airlines be able to route their passengers? How much of the military's logistical system would fail?

That's to say nothing of the variety of corporations that rely on the Internet to function, let alone the millions of Americans who would need to use it to communicate with their loved ones in a time of crisis.

Even worse, these effects would spill over internationally. The Internet is international in complex and surprising ways, and it would be impossible to ensure that the effects of a shutdown stayed domestic and didn't cause similar disasters in countries we're friendly with.

Security Flaws

The third flawed assumption is that we could build this capability securely. We can't.

Once we engineered a selective shutdown switch into the Internet, and implemented a way to do what Internet engineers have spent decades making sure never happens, we would have created an enormous security vulnerability. We would make the job of any would-be terrorist intent on bringing down the Internet much easier.

Computer and network security is hard, and every Internet system we've ever created has security vulnerabilities. It would be folly to think this one wouldn't as well. And given how unlikely the risk is, any actual shutdown would be far more likely to be a result of an unfortunate error or a malicious hacker than of a presidential order.

But the main problem with an Internet kill switch is that it's too coarse a hammer.

Yes, the bad guys use the Internet to communicate, and they can use it to attack us. But the good guys use it, too, and the good guys far outnumber the bad guys.

Shutting the Internet down, either the whole thing or just a part of it, even in the face of a foreign military attack would do far more damage than it could possibly prevent. And it would hurt others whom we don't want to hurt.

For years we've been bombarded with scare stories about terrorists wanting to shut the Internet down. They're mostly fairy tales, but they're scary precisely because the Internet is so critical to so many things.

Why would we want to terrorize our own population by doing exactly what we don't want anyone else to do? And a national emergency is precisely the worst time to do it.

Just implementing the capability would be very expensive; I would rather see that money going toward securing our nation's critical infrastructure from attack.

Defending his proposal, Sen. Lieberman pointed out that China has this capability. It's debatable whether or not it actually does, but it's actively pursuing the capability because the country cares less about its citizens.

Here in the U.S., it is both wrong and dangerous to give the president the power and ability to commit Internet suicide and terrorize Americans in this way.

Bruce Schneier is a security technologist and author of "Beyond Fear: Thinking Sensibly About Security in an Uncertain World." You can read more of his writing at www.schneier.com.

from TechCrunch.com, 2010-Aug-7, by Vivek Wadhwa:

Why We Need To Abolish Software Patents

During my tech days, I co-authored four software patents. Each cost my startup about $15,000—which seemed like a fortune in those days. I didn't really expect these to give me any advantage; after all if my competitors had half a brain, they would simply learn all they could from my patent filing and do things better. But I needed to raise financing, and VCs wouldn't give me the time of day unless I could tell a convincing story about how we, alone, owned the intellectual property for our secret sauce. We got the financing, and the plaques of the patents looked great in our reception area, so the expense was worth it. But there was definitely no competitive advantage.

Patents make a lot of sense in many industries; they are needed to protect the designs of industrial equipment, pharmaceutical formulations, biotechnology products and methods, biomedical devices, consumer products (toothpaste, shampoo, contact lenses, etc.), advanced materials & composites, and of course, widgets (lighting fixtures & elements, batteries, toys, tools, etc.). But in software these are just nuclear weapons in an arms race. They don't foster innovation, they inhibit it. That's because things change rapidly in this industry. Speed and technological obsolescence are the only protections that matter. Fledgling startups have to worry more about some big player or patent troll pulling out a big gun and bankrupting them with a frivolous lawsuit than they do about someone stealing their ideas.

New research by Berkeley professors Stuart J.H. Graham, Robert P. Merges, Pam Samuelson, and Ted Sichelman highlights the extent of this problem. They surveyed 1332 early-stage technology companies founded since 1998, of which 700 were in the software/internet space. Here is what they found:

• In software, only 24% of startups even bothered to file a patent. In medical devices, this proportion was 76%; and in biotech, 75%. Far more venture-backed companies file patents: in software, 67%; in medical devices, 94%; and in biotech, 97%.
• Venture-backed companies also file more patents than others that file patents. They file, on average, 5.9 patents as against the all-company average of 1.7. In medical devices and biotech, this is 25.2 vs. 15.0 and 34.6 vs. 9.7, respectively.
• Software executives consider patents to be the least important factor for competitiveness. They perceive gaining first-mover advantage to be the most important factor, followed by acquisition of complementary assets; copyrights; trademarks; secrecy; and making software difficult to reverse-engineer.
• Companies file patents to prevent competitors from copying their products, to improve their chances of securing an investment or liquidity event (IPO, acquisition, etc.), improving the company's reputation, and to gain bargaining power against others. Surprisingly, companies that held patents—even venture backed—didn't believe that patents made them more likely to innovate. Even more surprising, a quarter of companies that licensed technology from others said they did this to avoid lawsuits—not to gain technology or knowledge. In other words, the patent constituted a weapon or a trophy rather than a way to obtain revenues from others’ commercial adoption of their technology.

Pam Samuelson, one of the co-authors of the report, says that her conclusion from the research is that the world may be better off without software patents; that the biggest beneficiaries of software patents are patent lawyers and patent trolls, not entrepreneurs.

Meanwhile, the U.S. patent system is clogged and dysfunctional. John Schmid, of the Milwaukee Journal Sentinel, analyzed U.S. Patent and Trademark Office data and found that as of 2009, there were more than 1.2 million patents awaiting approval—nearly triple the number a decade earlier. In 2009, the patent agency took an average 3.5 years to deal with a patent request—more than twice the 18-month target. What is most alarming is that the patent office automatically publishes applications on line after the 18 months—outlining each innovation in detail regardless of whether an examiner has begun considering the application. Competitors anywhere in the world can steal ideas. This effectively undermines the entire purpose of the patent system: the patent office is charging applicants serious money for giving it the privilege of giving away their commercial secrets.

To make matters worse, the patent office is rejecting applications at an unprecedented pace—with fewer than 50% being approved, compared to 70% a decade ago. One estimate is that this costs entrepreneurs at least $6.4 billion each year in “forgone innovation”: legitimate technologies that cannot get licensed and start-ups that cannot get funded. So the agency charged with protecting U.S. intellectual property and aiding innovation is often doing the exact opposite.

Brad Feld, managing director at Foundry Group, says that we should simply abolish software patents. He believes that the system has spun completely out of control, with the vast majority of filings not passing the fundamental tests of a patent (that it be non-obvious, novel, and unique innovation). Copyright and trade secrets have historically been the primary protection mechanisms for software intellectual property, and they are still the best solutions. Feld notes that technology companies are now forced to divert huge resources to defend themselves from patent trolls rather than advance their innovations.

The founders of the United States considered intellectual property worthy of a special place in the Constitution—“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” They had the concept right, but they surely never conceived of Amazon.com patenting clicks in an online shopping cart and methods for having an online discussion, or Microsoft patenting methods for activating double click applications with a single click. It's time to do as Brad Feld suggests: simply abolish these abominations.

Editor's note: Guest writer Vivek Wadhwa is an entrepreneur turned academic. He is a Visiting Scholar at the School of Information at UC-Berkeley, Senior Research Associate at Harvard Law School and Director of Research at the Center for Entrepreneurship and Research Commercialization at Duke University. You can follow him on Twitter at @vwadhwa and find his research at www.wadhwa.com.

from the New York Times, 2010-Aug-27, printed 2010-Aug-28, p.B2, by Steve Lohr:

Paul Allen's Company Files Broad Lawsuit Over Patents

A company owned by Paul Allen, co-founder of Microsoft, filed suit on Friday against Google, Apple and nine other companies, contending that their online navigation and viewing technology illegally uses patented inventions created by Mr. Allen's research firm, which is now defunct.

The four patents cited in the suit cover research work done by Interval Research, a Silicon Valley research organization that was founded in 1992 and shut down in 2000. It was financed by Mr. Allen and led by David E. Liddle, a former research scientist at Xerox Palo Alto Research Center in the 1970s. What remains is a licensing arm, Interval Licensing, which is bringing the suit.

The patents, issued from 2000 to 2004, appear to be broad in their application to Internet commerce and Web viewing. They include news alerts, drawing a viewer's attention to a display device and browsing technology for video, sound and text.

The strength of the patent claims, experts say, is not clear. They were developed by a company that invested heavily in research, not merely a patent-buying and licensing firm. But the years when these patents were granted were “deeply problematic” for the United States Patent and Trademark Office, said Josh Lerner, an intellectual property expert at the Harvard Business School.

It was a time when the patent office was inundated with business method and process patents, Mr. Lerner said. These kinds of patents on ideas, he added, were often not fundamentally new, even if they had not previously been patented.

The move by Mr. Allen's company, Mr. Lerner noted, underlines a growing trend in the patent world. “More and more organizations, companies and universities, not just individual inventors, are seeking to monetize their intellectual property, and they are not afraid to go to court to do that,” he said.

Google, in a statement in response to the suit, observed the trend and criticized the drift. “Innovation — not litigation — is the way to bring to market the kinds of products and services that benefit millions of people around the world,” the company said.

The complaint says that Interval Research “served as an outside collaborator to and provided research funding for Sergey Brin and Larry Page's research that resulted in Google,” referring to the search company's founders.

One exhibit in the case is a screenshot from Google's Web page in 1998, “About Google!” It lists Interval Research as one of two outside collaborators — the I.B.M. Almaden Research Center was the other — and as one of four sources of research money; the other three were government agencies.

Besides Google and Apple, the other defendants are AOL, eBay, Facebook, Netflix, Office Depot, OfficeMax, Staples, Yahoo and YouTube.

A spokesman for Mr. Allen, David Postman, said the suit was a step in an effort that had been under way for about four years to try to make money from the intellectual property developed by Interval Research. The research firm, he said, produced nearly 300 patents. Some have been sold, and some have been licensed.

The complaint against the 11 companies is the first suit by Interval Licensing. Interval had held talks with the companies, Mr. Postman said.

“It became clear that these companies were using the technology covered by these patents,” he said. “Interval took this action to protect its investment and intellectual property.”

Today, Mr. Liddle is a partner in a Silicon Valley venture capital firm, U.S. Venture Partners, and he is also on the board of The New York Times Company. He declined to comment on the suit.

from the Wall Street Journal, 2010-Sep-1, by Dionne Searcey:

New Breed of Patent Claim Bedevils Product Makers

Raymond E. Stauffer was shopping at a New Jersey mall when he noticed something peculiar about the bow ties on display at Brooks Brothers: They were labeled with old patent numbers.

Mr. Stauffer, who calls himself a "sharp-dressed man," also happens to be a patent lawyer. He sued Brooks Brothers Inc. in federal court, claiming it broke the law by marking its adjustable bow ties with patents that expired in the 1950s.

He figured the retailer would have to pay a nominal amount for violating a law that bars companies from marking products with erroneous patent numbers.

A federal appellate court ruling on Tuesday breathed new life into his case by upholding his right to sue—and could pave the way for hundreds of similar suits against major companies to move forward. A separate ruling in December raised the stakes in such cases, potentially exposing product makers to huge liabilities.

Already, lawsuits claiming false patent markings have been brought against companies that make turkey pop-up timers, toilet plungers, fabric softener, flashlights, staplers, Frisbees, kites, telecommunications equipment, bubble gum and a toy called The Original Wooly Willy.

Defendants include companies such as Procter & Gamble, Bayer Healthcare LLC, Cisco Systems, Scientific-Atlanta, Merck & Co., Pfizer Inc., 3M Co., DirecTV, Medtronic Inc. Merck said no one was available to comment. The other companies didn't respond to requests for comment.

Marking a tube of toothpaste or paper cup with a patent that is out of date or doesn't exist has been against the law for years. It is considered anticompetitive. Until late last year, the most a violator had to worry about was paying a $500 penalty for misleading the public.

But in December, the Court of Appeals for the Federal Circuit in Washington ruled that defendants could be held responsible for up to $500 per offense.

Lawyers for product manufacturers now fear clients are liable for up to $500 for every tube of mascara or box of garbage bags marked with an expired patent—an error that turns out to be quite common.

In recent months, would-be plaintiffs have been fanning out across retail stores and the Internet searching for expired patent numbers on everything from toothpaste to toilet plungers.

"It absolutely is a startling development in the interpretation of that provision," says Michael C. Smith, a defense lawyer from Marshall, Texas, who is representing Wal-Mart Stores Inc. and mouse-trap maker Kness Mfg. Co. in suits claiming false patent marking. "A lot of these products always have patent numbers on them, and it never occurred to anyone to take them off."

Mr. Smith, who declined to discuss the lawsuits he is handling, says he generally advises clients: "Now is a good time for you to have somebody run down your products" and check their patent numbers.

Patents have a life span of 17 or 20 years. To keep them valid, companies must pay maintenance fees every four years. Once they expire, the holder is expected to remove the numbers from products.

According to Chicago-based merchant bank Ocean Tomo, which tracks patent suits, nearly 350 federal lawsuits have been filed since the December appellate court ruling.

Would-be plaintiffs have been searching retail stores and the Internet for expired patents, then filing lawsuits against product makers. Suits have been filed over allegedly erroneous patent numbers on such products as Etch A Sketch toys, Crest toothpaste, Depend underwear and L'Oréal mascara.

Some of the suits have been dismissed. Many had been stayed, pending the outcome of Mr. Stauffer's case against Brooks Brothers.

On Tuesday, the Federal Circuit Court of Appeals reversed a lower court ruling that had dismissed Mr. Stauffer's case saying he didn't have standing to bring it.

"Every plaintiff who brings one of these cases is a private attorney general who is doing a service to the United States, and I'm doing the same," says Mr. Stauffer, a lawyer in Roseland, N.J.

Brooks Brothers and a lawyer who represents it in the case didn't respond to requests for comment.

The way Mr. Stauffer calculates it, the liability could be huge. Brooks Brothers had erroneously marked 120 different styles of ties, which sell for about $45 to $100 a piece, according to Mr. Stauffer. He says he doesn't know how many individual ties were falsely marked.

"I would have settled this case for $25,000 back in December of 2008," Mr. Stauffer says. "Brooks Brothers, however, seemed eager to want to litigate the case, and I was delighted to give them the opportunity."

So far, none of the suits have reaped the gigantic awards that plaintiffs say could be possible.

But corporations are spooked, according to numerous attorneys who represent manufacturers of consumer products. They are checking the status of patents and scrambling to review the product lines on shelves to be sure labeling is up-to-date. And they are contacting suppliers to make sure their patents are valid.

"These cases have forced companies to spend time, money and resources investigating claims where there really isn't any injury to anybody," says Chicago lawyer Jason C. White, who is defending more than a dozen companies from such suits. "Companies are spending a lot of time investigating this, even ones who haven't been sued. It has captured the attention of a large cross section of corporate America."

Some of the cases have settled because companies fear a bad outcome or don't want to incur large legal fees fighting them.

"You're paying the hostage fee," says Mark Willard, a lawyer who represented hand-tool manufacturer Ames True Temper Co. in a suit involving a shrub rake. "It was manufactured in China using an old mold that still had the expired patent number on it," says Mr. Willard, adding that the company has long had in place a policy of monitoring patents. "This one fell through the cracks."

The company settled the case for an undisclosed amount. Mr. Willard says the suit has cost the company in other ways. Ames had to thoroughly review its inventory to be sure more outdated patents weren't on the market. "They have a very large product line," he says.

One defendant, Solo Cup Co., was accused in a lawsuit of erroneously marking 21 billion items, including lids for Starbucks coffee cups. The company had more than 3,000 molds for its products that were stamped with the erroneous patents, and they had a plan in place to phase out the molds, according to filings in the case. Solo declined to comment.

The suits are affecting how companies tend their intellectual property. Robert Koch, an intellectual-property lawyer in Washington, says he advises his clients to stop marking patents on their products. That would limit companies' ability to seek damages from infringers. But it eliminates having to closely monitor every package and brochure to avoid a lawsuit.

The law on false patent markings is similar to whistle-blower laws. Anyone can file a claim on behalf of the government, and plaintiffs must split any fine award evenly with it. The Justice Department has argued on the side of plaintiffs in some of the claims.

"We do think that these suits have directed industry attention to the need to adopt procedures to assure that patent markings are accurate and to remove the numbers of expired patents from products," says Charles Miller, a Justice Department spokesman. "This should result in more accurate information on products and their packaging, which would be beneficial to consumers."

The people behind the suits say they see themselves as consumer advocates, helping to protect legitimate inventors from giant corporations who are pretending to have patents to keep competitors from stepping on their turf.

"It chills competition, it misleads the public and takes away from the credit patent holders deserve," says Daniel Ravicher, founder and executive director of New York nonprofit Public Patent Foundation, which has filed numerous suits.

Mr. Ravicher says he found one defendant, Johnson & Johnson's McNeil-PPC unit, by perusing his local drugstore shelves, where he found a bottle of Tylenol he says had an expired patent. Johnson & Johnson declined to comment.

L'Oréal USA Inc. has been hit with at least two suits over its Double Extend Mascara. One of the tubes with an expired patent was still on the shelves of a Midtown Manhattan pharmacy last week. L'Oréal declined to comment.

The lawsuits have been filed by relatively few people or entities, many of whom have close ties to plaintiffs' lawyers who work on patent suits. Some are filed in the name of organizations owned by patent attorneys.

One plaintiff, Sarah Tompkins, who has sued more than a dozen companies, is the wife of Allen, Texas, patent lawyer George Tompkins.

Mr. Tompkins says he heard about the December federal-court ruling from lawyer friends. He and his wife then spent hours poring over Internet advertising to check for outdated patents on products, a process that can be relatively simple because patents are numbered chronologically. Patents that start with the number 4, for example, have expired in recent years.

The couple trekked to retail stores to find falsely marked products on shelves. Their lawsuit against multiple companies also contains false advertising claims.

"We decided what companies were doing was wrong, so we filed a lawsuit," Mr. Tompkins says.

from the Wall Street Journal, 2010-May-3:

Free Speech for Some
Unions get a pass from new campaign finance disclosure rules.

Democrats in Congress last week introduced White House-backed legislation that would indirectly reinstate free-speech restrictions that the Supreme Court declared unconstitutional in January. Backers say the measure will force disclosure of corporate money in politics, but the real goal is to muzzle criticism—at least from some people.

The legislation, sponsored by Democrats Charles Schumer in the Senate and Chris Van Hollen in the House, would prevent government contractors and corporate beneficiaries of the Troubled Asset Relief Program from spending money on U.S. elections. It would also ban U.S. subsidiaries of foreign companies from making political contributions if a foreign national owns 20% or more of the voting shares in the company, or if foreign nationals comprise a majority of the board of directors.

The provisions are designed to undermine this year's landmark Supreme Court Citizens United decision, which held that limits on independent campaign expenditures by corporations or unions violate First Amendment free speech guarantees. But, under the bill, unions with government contracts would not be subject to the same restrictions as corporations.

If, as proponents claim, their worry is that a company will use campaign contributions to win government contracts (pay-to-play), why does their bill not show equal concern that labor unions will support candidates with the goal of getting government contracts driven to union companies? The legislation also fails to impose limits on the foreign involvement of unions with global reach, such as the Service Employees International Union or the International Brotherhood of Electrical Workers.

It's no coincidence that the lead authors of these bills are the current head of the Democratic Congressional Campaign Committee (Mr. Van Hollen) and the immediate past head of the Democratic Senatorial Campaign Committee (Mr. Schumer). And it's no surprise that Republicans have been reluctant to sign on. The House bill has two GOP sponsors and the Senate bill has none.

When President Obama berated the High Court earlier this year for its free speech ruling, he was very specific about whose free speech he opposed. "This is a major victory for Big Oil, Wall Street banks, health insurance companies and other powerful interests," said Mr. Obama of the decision, suggesting that despite the good governance rhetoric, this legislation is not about muzzling spenders generally so much as specific spenders who don't always salute the Democratic agenda.

from the Moderate Voice, 2010-Jun-25, by Logan Penza:

The Problem With Regulating Political Speech

In an attempt to overturn the effect of the recent Supreme Court decision in Citizens United v. FCC, House Democrats have passed the DISCLOSE Act. The bill, which faces an “uncertain” future in the Senate, would subject corporations to new limits on issue advocacy, but specifically exempt a few entities hand-picked by House Democrats. In particular, unions would be exempt from the restrictions in the bill as well as various other special interest groups affiliated with Democratic party causes or simply too powerful to risk offending (e.g. the NRA).

This process itself shows the problem with trying to limit the ability of corporations or anyone else to speak out on political issues that affect them. (Contrary to the hyperbolic reports of many critics of Citizens United, the decision leaves in place limits on direct contributions to candidates.) Inevitably, such regulations will filled with custom-fit loopholes allowing allies of whichever party is currently in power to speak freely but attempting to muzzle adversaries. In short, such restrictions are the functional end of the First Amendment because they make speech rights contingent on supporting the party currently in power. At the point that whatever party happens to be in power at the time gets to determine who is allowed to use powerful media outlets and who is prohibited, what we would have would be indistinguishable from how authoritarian governments control access to the media by ensuring that only their supporters are allowed to speak while dissenters are barred. In would have the veneer of the rule of law, but what lay just beneath the surface would be nothing other than raw political coercion.

Because of the clumsiness of its attempt to claim partisan control of the media, the bill will probably die in a filibuster in the Senate. And even if it were passed, the courts are unlikely to allow such a direct attack on dissenting political speech to set a precedent leading to even more partisan restrictions. But the effort alone says very bad things about the attitude of the current Democratic party leadership towards free speech and dissent. In exposing their desire for “free speech for me, but not for thee”, they have permanently forfeited the moral high ground they claimed only a short time ago with the slogan “dissent is patriotic”.

from National Review, 2010-Jun-1, printed 2010-Jun-7, by Bradley A. Smith:

Disclosed Partisanship

In February 1996, then–White House aide and current Supreme Court nominee Elena Kagan co-authored a memorandum to deputy chief of staff Harold Ickes regarding whether President Clinton should support proposed amendments to the McCain-Feingold campaign-finance bill.

The first amendment was to weaken the bill’s ban on “bundling” of contributions. The memorandum’s analysis of the proposal begins: “We have no data on which party benefits more from bundling practices.” The second amendment was to limit out-of-state contributions to candidates. The memo’s analysis begins: “The [limit] may hurt Democratic senatorial candidates.” In other words, the memo evaluated the amendments not on the basis of their benefits or harms to the public, but rather their potential to confer a partisan advantage.

This is not surprising to those who follow campaign-finance-reform efforts closely. A key goal of every “reform” bill has been partisan gain. Fast forward 14 years to January 2010, when the Supreme Court, in an eminently sensible decision in Citizens United v. Federal Election Commission, held that corporations and unions have the right under the First Amendment to speak out in political races. (The government, represented by Kagan, who was then the solicitor general, had argued that it had the power to ban books and movies if they were distributed or produced by corporations, although the solicitor general went to some length to assure the Court that in practice it would not ban books, only “pamphlets.”) The immediate response of the White House and Democrats in Congress was to assess the effect of the decision on their electoral prospects. And they didn’t like the assessment. NPR’s Nina Totenberg summed up the conventional Democratic wisdom on the ruling: “It will undoubtedly help Republican candidates since corporations have generally supported Republican candidates more.”

President Obama proclaimed that the ruling should be overturned because it was a victory for “Big Oil, Wall Street banks, [and] health-insurance companies,” his usual rogue’s gallery. Sen. Chuck Schumer (D., N.Y.) immediately began discussing legislative proposals that would “make [corporations] think twice” before getting involved in campaigns. “The deterrent effect should not be underestimated,” he added. The Washington Post noted that the Democratic proposals “are aimed at preventing corporations from hiding behind trade groups or other organizations in order to fund attack ads on political candidates.”

Rebuffing Republican requests for input into the drafting process, Schumer, the former head of the Democratic Senatorial Campaign Committee, and Rep. Chris Van Hollen (Md.), current head of the Democratic Congressional Campaign Committee, came up with a bill with the gimmicky acronym “DISCLOSE,” which stands for “Democracy Is Strengthened by Casting Light on Spending in Elections.” Critics have more accurately dubbed it “Democratic Incumbents Seeking to Contain Losses by Outlawing Speech in Elections.”

DISCLOSE’s partisanship is apparent in its different treatment of corporations and unions. Every major federal campaign-finance-reform effort since 1943 has attempted to treat corporations and unions equally. If a limit applied to corporations, it applied to unions; if unions could form PACs, corporations could too; and so on. DISCLOSE is the first major campaign-finance bill that has not taken this approach. For example, it prohibits corporations with government contracts of as little as $50,000 from making independent expenditures in elections or engaging in “electioneering communications.” This very low threshold would bar not only large contractors such as Boeing but also thousands of small businesses from exercising the rights recognized in Citizens United. Yet no parallel provision exists for unions that bargain with the government for multimillion-dollar benefit packages. Corporations that received TARP funds are prohibited from spending, but unions at those companies — which in many cases benefited far more from the bailouts than shareholders — are not.

Similarly, DISCLOSE prohibits U.S. corporations with as little as 20 percent foreign ownership from spending on elections, without placing parallel restrictions on unions (and despite the fact that a part of the Federal Election Campaign Act that was unaffected by Citizens United already prohibits spending in U.S. elections by foreign nationals and truly foreign companies). Thus Verizon Wireless, a New Jersey corporation with over 80,000 U.S. employees, is prohibited from making expenditures because the English corporation Vodafone has a minority stake in it. But the Service Employees International Union and the International Brotherhood of Electrical Workers are free to spend to their hearts’ content, even though they have foreign members and directors. (That’s what “International” stands for: SEIU has had members in Canada since 1943. IBEW has been organized in Canada since 1899, and is also in Panama and several Caribbean nations. Both have Canadians on their international executive committees.) Thus the provision not only discriminates against foreign nationals (in violation of the Constitution and countless federal statutes) — something few liberals would support in other contexts, such as limiting the right of foreign nationals to march in protest of government policies, write letters to the editor, or speak out on radio and television — but limits the rights of American shareholders to participate in the political system merely because they own property in association with foreign nationals.

Meanwhile, the disclosure provisions in the bill range from the duplicative to the patently absurd. Federal law already provides that any entity making an independent expenditure of more than $250 must file reports with the FEC that include the name of the spender, the date and amount of the expenditure, the candidate supported or opposed, and a statement that the communication was not coordinated with or authorized by the candidate. Additionally, the spender must disclose the name of any other entity that contributed funds for the communication. For “electioneering communications” — defined in current law as broadcast ads that mention a candidate and are aired within 30 days before a primary or 60 days before a general election — even more information is required, and contributors of $1,000 or more must be reported (although the reporting kicks in only once $10,000 has been spent). Additionally, “527” organizations, such as Swift Boat Veterans for Truth, must report all donors to the IRS, and political-action committees — a category including any group that spends over $1,000 and has as its major purpose influencing elections — must report all of their donors and expenditures to the FEC. Finally, current law requires all ads to include notice of who is paying for them.

Given this, it is obvious that DISCLOSE seeks less to enlighten the public than to bury would-be spenders in regulation and provide politicians with a means for intimidating their donors. DISCLOSE would require, for example, that an organization that makes independent expenditures disclose all of its members and donors contributing over $1,000. It extends this requirement even to an organization that has made no political expenditures in the current cycle but has done so in the past. It thereby provides politicians — in this year’s cycle, endangered Democratic incumbents — a weapon with which to threaten political opponents. The Supreme Court, in a 1958 case called NAACP v. Alabama, held that the government cannot compel groups to reveal their member lists and financial supporters. That may be why DISCLOSE allows groups to avoid such disclosure by establishing “campaign-related activity” accounts, essentially a new type of PAC funded by money solicited specifically to make independent expenditures. But this too runs afoul of the Court: One point of Citizens United was that the government could not require spenders to set up such additional accounts as a condition of political participation.

Some of DISCLOSE’s provisions are outright absurd. It would require that the CEO of a company or organization paying for a broadcast ad appear in the ad and state the organization’s name twice, as well as his name, his title, and his approval of the message. The largest contributor to any ad purchased by an organization, such as a trade association or chamber of commerce, would also have to appear on camera and state the organization’s name three times, as well as his name and title and his approval of the message. These disclaimers, in addition to the existing requirement of a statement as to who is paying for the ad, can take up roughly half of every 30-second commercial. The primary “benefit” to the public is that it will learn that the organization already announced as paying for the ad does, in fact, “approve” of it. We see again that the real purpose is to burden speech — or, as the sponsors wrote in their press release upon introducing the legislation, to “partly restore those limits” struck down as unconstitutional by the Supreme Court.

In fact, in key ways the bill extends the prohibition on corporate expenditures beyond what it was prior to Citizens United. Before the ruling, corporations were prohibited from funding independent expenditures (ads that “expressly advocate” the election or defeat of candidates) at any time, and “electioneering communications” (ads that did not “expressly advocate” election or defeat of a candidate but merely named him or her) within 30 days of a primary or 60 days of a general election. DISCLOSE expands the definition of “electioneering communication” to include any ad mentioning a candidate from 90 days before the primary all the way through the general election. In Illinois this year, that is a twelve-month period beginning in November; in Ohio and Indiana, it runs from the beginning of February through November. In most states, it will run at least six months. Because DISCLOSE prohibits companies with as little as 20 percent foreign ownership, or as little as $50,000 in federal contracts, from running “electioneering communications,” this means that thousands of corporations would be deprived of free speech for as much as a year.

That Congress would respond to a Supreme Court decision affirming corporations’ freedom of speech by restricting that freedom to an even greater extent than it did before the decision is remarkable. The attempt is unlikely to withstand judicial challenge, but, as Senator Schumer made clear early on, he believes the courts won’t have time to rule on the constitutionality of the act before the 2010 election is over.

Whether DISCLOSE passes depends on whether there are any Republican senators gullible enough not to filibuster a law specifically designed to give Democrats an electoral advantage. So far, even John McCain, a supporter of campaign-finance reform, has refused to sign on.

But this is the way of both “campaign-finance reform” and the Obama administration: use the law to silence your opponents. The DISCLOSE Act is a testament to the wisdom of the Supreme Court’s decision in Citizens United. The First Amendment sought to place political speech beyond the government’s control, and we can be glad that it did. Does future Justice Kagan agree?

Bradley A. Smith is the Blackmore/Nault Designated Professor of Law at Capital University Law School, chairman of the Center for Competitive Politics, and former chairman of the Federal Election Commission.

from the Washington Post, 2010-Jun-17, by Cleta Mitchell:

NRA exemption shows campaign disclosure bill's cynical, fatal flaws

The cynical decision this week by House Democrats to exempt the National Rifle Association from the latest campaign finance regulatory scheme is itself a public disclosure. It reveals the true purpose of the perversely named Disclose Act (H.R. 5175): namely, to silence congressional critics in the 2010 elections.

The NRA "carve-out" reaffirms the wisdom of the First Amendment's precise language: "Congress shall make no law . . . abridging the freedom of speech."

Congress can't help itself. Since 1798, with the Alien and Sedition Acts, incumbent politicians have yearned for legal duct tape for their opponents' mouths. The Disclose Act is a doozy of a muzzle.

For its part, the NRA -- on whose board of directors I serve -- rather than holding steadfastly to its historic principles of defending the Constitution and continuing its noble fight against government regulation of political speech instead opted for a political deal borne of self-interest in exchange for "neutrality" from the legislation's requirements. In doing so, the NRA has, sadly, affirmed the notion held by congressional Democrats (and some Republicans), liberal activists, the media establishment and, at least for now, a minority on the Supreme Court that First Amendment protections are subject to negotiation. The Second Amendment surely cannot be far behind.

Since the court's January decision in Citizens United v. Federal Election Commission that corporations cannot be constitutionally prohibited from making independent candidate-related expenditures, Democrats have been hyperventilating at the notion that corporations might spend millions of dollars criticizing them. To foreclose that possibility, the Disclose Act would impose onerous and complicated "disclosure" restrictions on organizations that dare to engage in constitutionally protected political speech and on corporations that dare to contribute to such organizations.

Democrats would effectively neuter the court's decision by requiring the names of multiple donors to be recited in ads (thus shrinking the time spent on actual speech), requiring the CEO of a corporate donor to personally appear in campaign-related ads, expanding the coverage period to virtually the entire election year, and including myriad other rules that the NRA described last month as "byzantine" and an "arbitrary patchwork of reporting and disclosure requirements."

The NRA's wheel-squeaking bought it an exemption from those requirements. Tea Party organizations arising spontaneously since 2009? Out of luck. Online organizations with large e-mail followings but perhaps no formal dues structure? Forget it.

Receiving less attention than the NRA "carve-out" but no less cynical is the bill's sop to organized labor: Aggregate contributions of $600 or more would be disclosed. Why start at $600? Why not $200 or, say, $500? Because most union members' dues aggregate less than $600 in a calendar year and thus members' contributions to labor's campaign-related spending wouldn't need to be disclosed . . . even to the union members whose dues are spent for political purposes.

In Citizens United, the court held that the First Amendment doesn't permit Congress to treat different corporations differently; that the protections afforded political speech arise from the Constitution, not Congress. Otherwise, it would be tantamount to a congressional power to license the speech of some while denying it to others.

The NRA carve-out is a clear example of a congressional speech license.

The ostensible purpose of the legislation is benign "disclosure," upheld in Citizens United as permissible under the First Amendment. Even conservative Justice Antonin Scalia has expressed skepticism about the constitutional infirmity of disclosure requirements in another case argued this term; Scalia intoned in oral argument that "running a democracy takes a certain amount of civic courage."

That's true. Indeed, the law upheld in Citizens United requires all donors to candidate-related expenditures to be publicly disclosed to the FEC in a timely manner.

But the Disclose Act isn't really intended to elicit information not currently required by law. The act serves notice on certain speakers that their involvement in the political process will exact a high price of regulation, penalty and notoriety, using disclosure and reporting as a subterfuge to chill their political speech and association.

It is only disclosure, say the authors. And box-cutters are only handy household tools . . . until they are used by terrorists to crash airplanes.

This is not just "disclosure." It is a scheme hatched by political insiders to eradicate disfavored speech. There is no room under the First Amendment for Congress to make deals on political speech, whether with the NRA or anyone else.

The writer is a partner at Foley & Lardner who works in campaign finance law and is a member of the NRA's board of directors.

from Law.com's Corporate Counsel, 2010-Jul-26, by Joe Mullin:

Patent Litigation Weekly: Wouldn't You Like to Be a Pepper Too?
Poor Little Plano

In a world saturated with bold patent claims it takes a lot to stand out. But a recent press release describing a lawsuit filed by InNova Patent Licensing does that. A press release, written up by The Lanier Law Firm, asserts that a spam-killin' e-mail system described by "revolutionary" patent no. 6,018,761 is "one of the building blocks for all e-mail communication."

Wow! This makes NTP look like a bunch of chumps—they only claim to have invented mobile e-mail. The lead Lanier attorney on the case, Christopher Banys, goes on to state in the press release: "E-mail as we know it would essentially stop working if it weren't for InNova's patents." Hmm... we'll file that comment under "how to imply someone copied you without actually having any evidence of copying or even putting the accusation on the record."

Taking such an expansive view of its "property"—unless your e-mail program doesn't have a spam filter, you're likely to be trespassing yourself—provides InNova no shortage of targets. The suit [PDF] names a who's who of big tech and finance companies as defendants, including AOL, Apple, Google, Yahoo, Ericsson, 3Com, Alcatel-Lucent, IBM, Hewlett-Packard, JP Morgan Chase, Wells Fargo, and Bank of America.

But one surprising name listed in the complaint that really got our attention: Dr. Pepper Snapple Group. Patent infringement suits have expanded into all kinds of different industries in the past few years, but we don't recall having seen many beverage companies hit with one before. What could it be that makes Dr. Pepper so special (besides, of course, its delicious taste and high caffeine count)? Could it be the address of its corporate headquarters, which is located in the Dallas suburb of Plano, just inside the boundary of the Eastern District of Texas?

More defendants have been trying to transfer out of East Texas lately, with some success; but throwing a few East Texas companies into a list of patent defendants sometimes works for plaintiffs trying to stay in their chosen district. That's likely what InNova is up to here.  

There aren't many big corporations headquartered in the small East Texas towns, like Tyler and Marshall, that patent plaintiffs love. So InNova has turned to companies residing in the one one good-sized community within the Eastern District. If this strategy takes off, will Plano become America's unluckiest suburb?

Reading the InNova lawsuit more closely, we find a bunch of other Plano-based defendants that seem more than a little out of place on a list of corporations that regularly appear on the Fortune 100.  Frito-Lay Corp.? Plano headquarters. Wait a sec, where's Frito-Lay parent company? Alas, the much larger New York-based PepsiCo is not on the list.

Rent-A-Center? Plano headquarters. Perot Systems? Plano. J.C. Penney? Plano. Cinemark USA? Plano. Hey, what's Crossmark, Inc., anyhow? Who cares, they're in Plano!

The suit was filed in the federal courthouse in Marshall, not Plano. But intra-district transfers are exceedingly rare. Suing six defendants based just inside the boundary of the Eastern District means the dispute is likely to stay in Marshall. Apparently there's just one place the sword of justice is strong enough to defend inventor Robert Uomini's "revolutionary" invention.

Uomini, by the way, is an interesting guy. The fortune he's seeking by asserting his patent would actually be his second. He landed his first one in 1995 by scoring a $22 million lottery jackpot.

Speaking with a San Francisco Chronicle reporter several years after his big payday, Uomini said the lottery win only ended up being worth $7 million after taxes and delayed payments. "Don't get into the habit of spending, no matter how much it is," he advised future lottery winners. "It is not infinite."

The SF Chron reported:

Uomini divorced last year and said the lottery did contribute in part to his marriage's breakdown. He still works in the field of research mathematics. And yes, he still plays the lottery, odds be damned.

He sure does. The patent lawsuit lottery has decidedly better odds, though, if you can just get a few miles outside Dallas...

• InNova Patent Licensing LLC v. 3Com Corp. et al [PDF]

from Wired, 2011-Jun-20, by David Kravets:

Righthaven Loss: Judge Rules Reposting Entire Article Is Fair Use

A federal judge ruled Monday that publishing an entire article without the rights holder’s authorization was a fair use of the work, in yet another blow to newspaper copyright troll Righthaven.

It’s not often that republishing an entire work without permission is deemed fair use. Fair use is an infringement defense when the defendant reproduced a copyrighted work for purposes such as criticism, commentary, teaching and research. The defense is analyzed on a case-by-case basis.

Monday’s ruling dismissed a lawsuit brought by Righthaven, a Las Vegas-based copyright litigation factory jointly owned with newspaper publisher Stephens Media. The venture’s litigation tactics and ethics are being questioned by several judges and attorneys, a factor that also weighed in on U.S. District Judge Philip Pro’s decision Monday.

Righthaven has sued more than 200 websites, bloggers and commenters for copyright infringement. More than 100 have settled out of court.

The lawsuit decided Monday targeted Wayne Hoehn, a Vietnam veteran who posted all 19 paragraphs of November editorial from the Las Vegas Review-Journal, which is owned by Stephens Media. Hoehn posted the article, and its headline, “Public Employee Pensions: We Can't Afford Them” on medjacksports.com to prompt discussion about the financial affairs of the nation’s states. Hoehn was a user of the site, not an employee.

Righthaven sought up to $150,000, the maximum in damages allowed under the Copyright Act. Righthaven argued that the November posting reduced the number of eyeballs that would have visited the Review-Journal site to read the editorial.

“Righthaven did not present any evidence that the market for the work was harmed by Hoehn’s noncommercial use for the 40 days it appeared on the website. Accordingly, there is no genuine issue of material fact that Hoehn’s use of the work was fair and summary judgment is appropriate,” Judge Pro ruled.

Marc Randazza, one of Hoehn’s attorneys, said he would petition the judge for legal fees and costs.

The judge also said he took into consideration that only five of the editorial’s paragraphs were “purely creative opinions” of the author.

“While the work does have some creative or editorial elements, these elements are not enough to consider the work a purely ‘creative work’ in the realm of fictional stories, song lyrics, or Barbie dolls,” he wrote. “Accordingly, the work is not within ‘the core of intended copyright protection.’”

Judge Pro, in his fair-use analysis, also found that the posting was for noncommercial purposes, and was part of an “online discussion.”

That said, Pro did not need to decide the fair-use question.

That’s because he also found that Righthaven did not have legal standing to bring the lawsuit, a hot-button topic in the Righthaven litigation.

Pro’s decision came a week after a different Las Vegas federal judge threatened to sanction Righthaven, calling its litigation efforts “disingenuous, if not outright deceitful” when it came to standing. Standing is a legal concept that has enabled Righthaven to bring lawsuits on behalf of the copyrights owned by Stephens Media.

That blistering decision by U.S. District Judge Roger Hunt, the chief judge in Nevada, places into doubt Righthaven’s year-old business model, which is also under a Colorado federal judge’s microscope.

Hunt gave Righthaven two weeks to explain why he should not sanction it for trying to “manufacture standing.” Judge Hunt suggested Righthaven never had standing in any of its cases because Righthaven and Stephens Media had agreed to share the proceeds of any damages awards or settlements, yet Stephens Media kept ownership of the copyright.

Righthaven must own the copyright to sue on its behalf, Hunt ruled in a decision echoed by Judge Pro on Monday.

What’s more, in each of the 200-plus cases Righthaven brought on behalf of Las Vegas Review-Journal articles, Righthaven never disclosed, as required, that Stephens Media had a “pecuniary interest” in the outcome, Hunt wrote.

Many bloggers who settled are mulling their legal options.

Illustration: Electronic Frontier Foundation

from PaidContent.org, 2011-Jan-18, by Joe Mullin:

After 200 Lawsuits Against Sites, Righthaven Targets Online Commenters

So far, the copyright-enforcement venture Righthaven has only made a few thousand dollars per settlement with its publisher targets, according to news reports. To make any real money, Righthaven will have to widen its sights. With its latest move, it appears to be doing just that. Atter suing mostly mom-and-pop web publishers—more than 200 blogs and web sites in all in its 10 months in business—Righthaven last week began suing mere commenters, including Wayne Hoehn, a user who posted an op-ed article at MadJackSports.com (the No. 1 handicapping forum on the web.) Remarkably, MadJack Sports itself was the subject of an earlier Righthaven lawsuit. The website settled the allegations.

The article that Hoehn allegedly copied was an op-ed column called “It's the pensions, stupid,” by Las Vegas Review-Journal columnist and former publisher Sherman Frederick. The R-J was Righthaven's initial client when the company started suing web sites and blogs last year, and the newspaper owns part of Righthaven as well. Frederick, who was a big booster of the Righthaven project when it started, stepped aside as publisher in November, but still writes a column for the R-J.

The same day, Righthaven sued James Higgins, who posted another apparently copied R-J story into a Google Groups news list. These two suits appear to be the first Righthaven suits against individual who don't own their own websites.

Pursuing such defendants suggests a certain desperation by Righthaven. Even when the record companies sued thousands of individual users, they at least had a believable argument that digital piracy was hurting music sales. Righthaven's argument that re-posting text articles does similar harm to newspaper companies—while a debatable and controversial point—at least has some logic to it when the suits are against online publishers. To suggest that online commenters are hurting the newspaper industry seems like a much bigger leap of faith.

Stretch though it may be, it's certainly possible that individual posters might be frightened into paying a few thousand dollars in settlement money to avoid litigation and a heavier penalty. Dozens of web sites have already settled with Righthaven, generally for $5,000 or less, according to the Las Vegas Sun.

Righthaven didn't immediately respond to a request for comment, but the company's outside lawyer in these cases, Shawn Mangano, noted that the piece Hoehn is alleged to have copied is an op-ed, not a news article. “A lot of Righthaven suits have involved copyrighted works that defendants argued were primarily factual in nature,” Mangano said. “You have no such argument with an op-ed piece. We're not just reporting on a shooting.” As to why Righthaven had decided to pursue posters, Mangano said: “I'm not privy to that analysis, and if I were, it would be privileged.”

Righthaven v. Hoehn Complaint [PDF]
Righthaven v. Higgins Complaint [PDF]

from Wired.com, 2010-Jul-22, by David Kravets:

Newspaper Chain’s New Business Plan: Copyright Suits

Steve Gibson has a plan to save the media world’s financial crisis — and it’s not the iPad.

Borrowing a page from patent trolls, the CEO of fledgling Las Vegas-based Righthaven has begun buying out the copyrights to newspaper content for the sole purpose of suing blogs and websites that re-post those articles without permission. And he says he’s making money.

“We believe it’s the best solution out there,” Gibson says. “Media companies’ assets are very much their copyrights. These companies need to understand and appreciate that those assets have value more than merely the present advertising revenues.”

Gibson’s vision is to monetize news content on the backend, by scouring the internet for infringing copies of his client’s articles, then suing and relying on the harsh penalties in the Copyright Act — up to $150,000 for a single infringement — to compel quick settlements. Since Righthaven’s formation in March, the company has filed at least 80 federal lawsuits against website operators and individual bloggers who’ve re-posted articles from the Las Vegas Review-Journal, his first client.

Now he’s talking expansion. The Review-Journal’s publisher, Stephens Media in Las Vegas, runs over 70 other newspapers in nine states, and Gibson says he already has an agreement to expand his practice to cover those properties. (Stephens Media declined comment, and referred inquiries to Gibson.) Hundreds of lawsuits, he says, are already in the works by year’s end. “We perceive there to be millions, if not billions, of infringements out there,” he says.

Righthaven’s lawsuits come on the heels of similar campaigns targeting music and movie infringers. The Recording Industry Association of America sued about 20,000 thousand file sharers over five years, before recently winding down its campaign. And a coalition of independent film producers called the U.S. Copyright Group was formed this year, already unleashing as many as 20,000 federal lawsuits against BitTorrent users accused of unlawfully sharing movies.

The RIAA’s lawsuits weren’t a money maker, though — the record labels spent $64 million in legal costs, and recovered only $1.3 million in damages and settlements. The independent film producers say they nonetheless expect to turn a profit from their lawsuits.

“People are settling with us,” says Thomas Dunlap, the head lawyer of the Copyright Group’s litigation. The out-of-court settlements, the number of which he declined to divulge, are ranging in value from $1,500 to $3,500 — about the price it would cost defendants to retain a lawyer. The RIAA’s settlements, which it collected in nearly every case, were for roughly the same amounts.

But experts say that settling the Righthaven cases, many of which target bloggers or aggregation sites, might not be as easy. The RIAA lawsuits often accused peer-to-peer users of sharing dozens of music files, meaning the risk of going to trial was financially huge for the defendants.

The same is true of the BitTorrent lawsuits. The movie file sharers are accused of leeching and seeding bits of movie files, contributing to the widespread and unauthorized distribution of independent movies such as Hurt Locker, Cry of the Wolf and others.

But each of the Righthaven suits charge one, or a handful, of infringements. Defendants might be less willing to settle a lawsuit stemming from their posting of a single news article, despite the Copyright Act’s whopping damages. “You’d have to go after a lot of people for a relatively small amount of money,” says Jonathan Band, a Washington, D.C. copyright lawyer. “That is a riskier proposition.”

Gibson claims Righthaven has already settled several lawsuits, the bulk of which are being chronicled by the Las Vegas Sun, for undisclosed sums.

One defendant who is ready to settle is Fred Bouzek, a Virginia man who runs bikernews.net, a user-generated site about hardcore biker news. He was sued last week on allegations the site ran a Las Vegas Review-Journal story about police going under cover with the Hell’s Angels.

Even if he had grounds to fight the case, he says it would be cheaper to settle. “The only choice I have is to try to raise money and offer a settlement,” he says.

Bill Irvine of Phoenix says he is fighting infringement allegations targeting AboveTopSecret.com, the site he controls under The Above Network. The site is accused of infringing a Review-Journal article on the Gulf of Mexico oil spill. The site is a user-generated discussion on “conspiracies, UFO’s, paranormal, secret societies, political scandals, new world order, terrorism, and dozens of related topics” and gets about 5 million hits monthly, Irvine says.

Righthaven, he says, should have sent him a takedown notice under the Digital Millennium Copyright Act, because the article was posted by a user, not the site itself.

“In this case, we feel this suit does not have merit,” he says. “We are confident we will have success challenging it.”

Gibson says he’s just getting started. Righthaven has other media clients that he won’t name until the lawsuits start rolling out, he says.

“Frankly, I think we’re having tremendous success at a number of levels,” Gibson says. “We file new complaints every day.”

from the Washington Post, 2010-Sep-13, by Amanda Becker:

Lawsuits allege copyright violations in posting of newspaper's articles on Web sites

An area public affairs shop, a D.C.-based coalition against the taxation of flavored beverages, a former government prosecutor and a nonprofit that promotes government responsibility have all found themselves the target of copyright lawsuits recently brought by a Las Vegas firm that has purchased the rights to articles from a local newspaper there.

Goddard Claussen Public Affairs and Americans Against Food Taxes were named defendants in copyright infringement lawsuits filed last week by Righthaven, a limited liability company headquartered in the desert city.

Since March, the company has brought at least 126 such suits against individuals and entities that have republished articles from the Las Vegas Review-Journal. Earlier claims were brought against former assistant U.S. attorney Thomas A. DiBiase and the Citizens for Responsibility and Ethics in Washington, which reached a settlement with Righthaven in May.

The lawsuits are similar to those brought by the Recording Industry Association of America against individuals who illegally downloaded music and by the District-based US Copyright Group, which targeted those who downloaded movies. But the wrinkle is that Righthaven represents itself, after buying the copyrights from the newspaper.

"This is a new kind of business model," said attorney Kurt Opsahl with the Electronic Frontier Foundation, which has volunteered to coordinate legal teams for some defendants. "Righthaven is purchasing the copyright and they are not owning these copyrights for the purpose of licensing them to others; their core business is filing lawsuits."

Righthaven registered as a limited liability company with Nevada's secretary of state in January. Two months later, the lawsuits began. The group typically buys rights after first determining if it can find possible infringements.

The alleged infringements of the defendants vary. DiBiase posted crime clippings on a Web site he maintains about murder investigations that have proceeded in the absence of a body. CREW used the Las Vegas newspaper's articles as supporting documentation for a report on the most corrupt politicians. But Righthaven attorneys say the usage of the newspaper's material -- even when the defendants cite and link to the original source -- is a copyright infringement that allows them to seek $75,000 in damages and the transfer of domain names.

"I'm not sure the amount sought or settled for is a direct reflection of the quantum of guilt or the egregiousness of conduct," said McDermott Will & Emery Partner Robert W. Zelnick. "But from what I've been reading, many of the parties are settling for a number that's around a few thousand dollars. I think from their perspective, it would cost more to hire a lawyer with expertise to evaluate the claims and pull together defenses."

That was the rationale of CREW, which settled its case with Righthaven for a confidential sum in May. According to the complaint filed in Nevada District Court, Righthaven sought redress for CREW's usage of 12 Review-Journal articles on Sen. John Ensign (R-Nev.), which were republished in their entirety on the watchdog's Web site. CREW Chief Counsel Anne Weismann said that even though she considers the group's usage of the material "benign," it would have considered taking the articles down.

"They didn't ask us to cease and desist, instead they just rushed into a lawsuit," Weismann said. "Had we gotten a cease-and-desist letter, it's quite possible we would have reevaluated based on that. But writing a cease-and-desist letter is not going to lead to money. I think it's pretty clear why that's the course they're not following and it exposes their underlying interest here, which is strictly commercial."

But Righthaven chief executive Steve Gibson said that the resources to generate such cease-and-desists requests, which often prove ineffective, are costly. The decision to forgo such a demand is not an indication that the company will treat every situation similarly, he said. Individuals who posted articles in which they were cited as a source, for example, might be treated differently than those who posted batches of stories on a particular subject wholesale -- but the group intends to go after perceived copyright infringements no matter how innocuous the usage may seem.

"Merely because in a number of cases we don't send any prior notice to the infringer doesn't mean we don't reserve the ability to be both lenient and humane in our approach to addressing the infringement," he said. "We just want folks to understand that infringement that replaces the publisher is not the right thing to do."

from Big Journalism, 2010-Sep-10, by Ron Futrel:

Righthaven Lawsuits: A Chilling Effect on the Blogosphere?

There's new meaning to the word “viral.”

Normally the word is used in a positive sense when something is so popular on the web that it is shared with as many people as possible and “hits” go through the roof. In this case, some are saying viral is an infection emanating from a Las Vegas newspaper and its hired hit men.

The Las Vegas Review-Journal has contracted with a company called Righthaven. Righthaven sues web sites that they say are violating the copyright laws by sharing the R-J stories. No warning, no request to take down the material, no shot across the bow—it's nuclear right out of the box. Virtually every other newspaper across the country asks “offending” web sites to just take down the material, and lawsuits are used only as a last resort.

I know, I'm being sued by Righthaven/R-J. My web site, www.LocalsLoveVegas.com is pretty much a hobby with video and news stories about this crazy city. The site is apolitical and focuses on fun things to do in one of the most enjoyable cities on the planet. I didn't know there was a problem until a writer from the competing paper in town, Steve Green, wrote an article about my lawsuit in the Las Vegas Sun.

Even though, as the lawsuit against me acknowledges, I gave full credit to the Review-Journal along with the writer of the story, and a link back to the R-J to read the entire story. They are still suing. The lawsuit is asking for me to pay $75,000, court costs, attorney's fees, and they want my web domain.

Here’s the relevant section of U.S. Copyright Law regarding “fair use:”

The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission…

The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author's observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”

Copyright protects the particular way an author has expressed himself. It does not extend to any ideas, systems, or factual information conveyed in the work.

At last check, there are around 120 websites being sued, including that of Senate candidate Sharron Angle, who has this little race going on with Harry Reid right now. Apparently her campaign web site linked to an R-J story on its site and Righthaven is smelling blood. The attorneys are offering settlements (NORML — the pot smokin' folks — settled for $2,100) but many of the web sites are fighting this foolishness (yes—again, I'm a bit biased in this case). The Democrat Party in Nevada has also been sued by Righthaven/R-J.

The politics get very dicey in this battle. The R-J is a conservative paper. They have taken a hard line in trying to remove Harry Reid from office in Nevada. In fact, at one point, Reid said he hoped the R-J went out of business. Righthaven has ties that are much more liberal. Steve Gibson, the guy who runs Righthaven, worked with Barack and Michelle Obama at the Sidley Austin LLP law firm in Chicago where Gibson and Michelle worked both worked on copyright and intellectual property law. Independent journalist Fintan Dunne has been uncovering this part of the story. Mutual friends of mine and Gibson's tell me he's conservative. I told you the politics are dicey.

Perhaps green is the color of the politics here. Many have speculated that the entire purpose of these lawsuits is to intimidate small web sites for quick cash. A blog site in Boston run by a lady who loves cats apparently posted an R-J story about a fire in Las Vegas that killed some birds. Like me, she was sued for $75k. Charities and non-profits are on the hit list. Speculation is rampant that this is an example of a dying industry trying for a final desperate grasp at survival. The R-J defends its actions by saying they are preserving the integrity of information that they have worked hard to obtain.

Bottom line, this may be a precedent-setting case about how things can be shared on the internet, but it also raises more questions than it answers. As a journalist, I wonder about a world where you credit another outlet with a story well done, and then they turn around and sue you for using their stuff. Don't laugh—that's part of what's happening here.

What about a restaurant that frames a newspaper article about its establishment and posts it near their entrance, is that copyright infringement or fair use? It's also hard to determine what the financial damages would be for something that is given away for free on the internet. At least when Metallica and the record industry went after those who shared their music, you could quantify the value of a CD. What damage is being done when you share something that anybody can already find for free on the web?

Gibson says other newspapers will be joining the R-J in what some are calling an attack on free speech on the internet. The `net is inflamed with stories on this issue and few are showing any love towards the R-J and Righthaven. I have many friends who are writers at the R-J – I would never give their names — but I have not found a single writer at that paper who is in favor of what management is doing.

from MediaPost.com, 2010-Sep-20, by Wendy Davis:

Judge Says Blogger Sued By Righthaven Might Have Fair-Use Defense

Copyright enforcement outfit Righthaven must have expected that its infringement lawsuits against small publishers and bloggers were sure wins. After all, in many cases the defendants appeared to have violated at least the letter of the copyright law by displaying significant portions of Las Vegas Review-Journal articles on their own sites.

But a federal judge in Nevada just issued a decision indicating that Righthaven might face some obstacles in its litigation campaign -- an initiative that has so far resulted in more than 100 lawsuits against small publishers, bloggers, nonprofits and even political candidates like Sharron Angle. In every known case, Righthaven filed suit without first asking the sites to remove the material.

U.S. District Judge Gloria Navarro on Friday set aside a default judgment that had been entered against blogger Jan Klerks, who publishes a noncommercial site about urban development, www.skyscrapercity.com.

In her eight-page ruling, Navarro wrote that Klerks has at least two meritorious defenses to an infringement action -- that he made fair use of the newspaper's material, and that the newspaper granted him an implied license.

Klerks argued that the paper's practice of encouraging readers to save articles and to share them with others amounts to an implied license to post them. Navarro found Klerks' position on that point strong enough to warrant further proceedings. "The defendant has reasonably asserted that the plaintiff's conduct may have constituted an implied license and that the defendant may have properly inferred that the owner consented to the use, especially in light of the established and accepted custom of users freely and openly sharing certain information posted on the Internet," she wrote.

Navarro also indicated that Klerks has a decent fair-use argument because of the nature of his blog. "Noncommercial, nonprofit activity is presumptively fair," she wrote. "This is because a use that has no demonstrable effect upon the potential market for, or the value of, the copyrighted work need not be prohibited in order to protect the author's incentive to create."

Of course, none of that means that Klerks will prevail at a trial. There are other factors that go into determining both fair use and implied licenses. But the ruling, which shows that Navarro is taking Klerks' arguments seriously, could give other defendants additional ammunition against Righthaven.

from PaidContent.org, 2010-Nov-16, by Joe Mullin:

Righthaven's Retreat On `Partial Copying' Cases Shows Firm's Vulnerability

In a sign that Righthaven is on the defensive, the controversial copyright enforcement company has offered to permanently drop one of its lawsuits—provided it doesn't have to pay legal fees to the attorneys defending the website it sued, Democratic Underground. The move shows the startup company's concerns about the potential for mounting legal bills.

If Righthaven were forced to pay legal fees in even one or two of its dozens of cases, it could cripple the firm's chances of turning copyright lawsuits into a for-profit business. News reports say that Righthaven generally gets less than $5,000 per settlement, and copyright defense bills can routinely be in the tens or even hundreds of thousands of dollars.

As part of their argument that attorneys' fees are unwarranted, Righthaven promises in the same 26-page motion that it won't file any more lawsuits unless the defendant has copied at least 75 percent of the text of an article that Righthaven owns the copyright to. Even though the partial-copying suits represent a small part of Righthaven's overall campaign to make money off infringements of newspaper copyrights, those suits have engendered controversy.

Righthaven was formed earlier this year in Las Vegas as a company that enforces newspaper copyrights. It has filed more than 150 lawsuits to date, mostly based on copyrights it acquired from the Las Vegas Review-Journal newspaper. The R-J also is part owner of Righthaven. In court papers, Righthaven lawyer Joseph Chu said that of the 69 Righthaven copyright lawsuits still pending, only four involve copying of less than 75 percent of the article.

Among those four is the one lawsuit that Righthaven has already flatly lost—Righthaven v. Realty One, which is against a real-estate broker who reproduced eight sentences from a 30-sentence news article. A Nevada federal judge on Oct. 20 deemed that “fair use” and thus legal [PDF].

Another partial-copying suit is the one against Democratic Underground, which involves a user who copied five sentences from an article called “Tea Party power fuels Angle,” which is more than 50 sentences long.

Generally, when defendants win in U.S. courts, they aren't able to recoup their legal fees unless the plaintiff filed a frivolous lawsuit or engaged in some type of misconduct. But the Copyright Act is different because it has special provisions making it easier for parties to win attorneys' fees. In the case against Righthaven, Democratic Underground is being defended by experienced copyright lawyers from the Electronic Frontier Foundation.

Separately, the Review-Journal's upper management is getting a major shakeup, as Sherman Frederick—who endorsed the Righthaven approach to copyright enforcement—has stepped down as publisher and CEO of Stephens Media Group, which owns the R-J. Frederick will continue on as a columnist and consultant to the R-J. Speaking to the Las Vegas Sun, Righthaven CEO Steve Gibson said Frederick's departure from the publisher's role “in no way diminishes the Righthaven business model.”

from the Wall Street Journal, 2010-Sep-17, by Justin Scheck and Stu Woo:

Lars Johnson Has Goats on His Roof and a Stable of Lawyers to Prove It
Having Trademarked the Ungulate Look, Restaurateur Butts Heads With Imitators

SISTER BAY, Wis.—Lars Johnson is proud of his restaurant's Swedish-meatball sandwich and pickled herring. But the signature offering at his Al Johnson's Swedish Restaurant isn't on the menu; it's the goats grazing on the grass-covered roof.

Any other business thinking of putting goats on the roof will have Mr. Johnson's lawyers to contend with.

Some patrons drive from afar to eat at the restaurant and see the goats that have been going up on Al Johnson's roof since 1973. The restaurant 14 years ago trademarked the right to put goats on a roof to attract customers to a business. "The restaurant is one of the top-grossing in Wisconsin, and I'm sure the goats have helped," says Mr. Johnson, who manages the family-owned restaurant.

So when a tourist spot 750 miles away decided to deploy a rooftop-caprine population, Mr. Johnson made a federal case of it.

Last year, he discovered that Tiger Mountain Market in Rabun County, Ga., had been grazing goats on its grass roof since 2007. Putting goats on the roof wasn't illegal. The violation, Al Johnson's alleged in a lawsuit in the U.S. District Court for the Northern District of Georgia, was that Tiger Mountain used the animals to woo business.

The suit declared: "Notwithstanding Al Johnson's Restaurant's prior, continuous and extensive use of the Goats on the Roof Trade Dress"—a type of trademark—"defendant Tiger Mountain Market opened a grocery store and gift shop in buildings with grass on the roofs and allows goats to climb on the roofs of its buildings."

Al Johnson's "demanded that Defendant cease and desist such conduct, but Defendant has willfully continued to offer food services from buildings with goats on the roof," the suit continued.

Danny Benson, the offending market's owner, says that "legally we could fight it, because it is ridiculous." But it would have been too expensive to fight, he says. He considered replacing his goats with pigs before deciding their heft and tendency to "root around" would pose a danger to people below.

Earlier this year, Mr. Benson agreed to pay Al Johnson's a fee for the right to use roof goats as a marketing tool in Georgia, South Carolina, North Carolina and Tennessee.

Al Johnson's is on constant lookout for other cloven-hooved intellectual-property violations. Mr. Johnson says the restaurant's Milwaukee law firm has sent letters to other alleged offenders, such as a gift shop in Wisconsin with a fake goat on its roof. It removed the ersatz ungulate.

In July, Virginia news outlets reported that goats on a hillside routinely hopped onto a platform under a billboard advertising two International House of Pancakes restaurants. Drivers pulled over to snap pictures, and one IHOP manager was quoted saying he enjoyed the publicity. Mr. Johnson says his lawyer is monitoring the situation in case "they take it a step further." Lisa Hodges, who manages one of the restaurants, says she doesn't plan to intentionally use the goats for marketing. "We can't help it that they climb up there," she says.

Any business that sells food and uses goats to lure customers may be violating the trademark, says Lori Meddings, the restaurant's lawyer. "The standard is, is there a likelihood of confusion?" she says.

Al Johnson, Lars's late father, opened the Swedish restaurant with a partner in 1949 in a former grocery store in this tourist town on Lake Michigan. In 1973, he imported a wooden building from Norway to replace the old structure, and covered it with a traditional sod roof.

Al Johnson's best friend, Winky Larson, brought him a goat named Oscar as a gag gift that year, the Johnson family says. Someone then put Oscar on the roof, where he attracted passersby, inspiring the family to accumulate a herd.

Two decades later, the business was booming. Summer tourists packed the restaurant, says Mr. Johnson, making it one of the largest U.S. importers of lingonberries. The family in 1996 registered the "Goats on the Roof" trademark. Mr. Johnson, whose father died in June, recalls his lawyer telling him: "Lars, you have something very valuable here."

The goat value was clear on a recent Saturday morning at Al Johnson's. Diners ate Swedish pancakes and meatballs as a red pickup arrived with four bleating passengers: Buckshot, Charlotte, Copper and Flipper.

Mr. Johnson's 15-year-old son, Bjorn, guided the goats up a staircase onto the roof. A herd of tourists congregated below.

The young Mr. Johnson said he worries that a goat will fall into a group of observers, as Buckshot did last year after stretching too far to munch on a cedar tree. Nobody was harmed, and the goat appeared to have fully recovered as he chewed a reporter's shirttail.

Inside the gift shop filled with goat-theme merchandise, Jim Miller, a 67-year-old tourist from Racine, Wis., was softly singing "The Lonely Goatherd" from "The Sound of Music."

The Al Johnson's goat trademark doesn't apply beyond U.S. borders, where roof goats also have marketing cachet.

The Goats on the Roof Coffee Shop in Northumberland, England, opened in July with the help of a government grant. "It's such a unique selling point," says Nina Remnant, proprietor of the cafe, which advertises Bagot goats on its roof.

British Columbia appears to be a hotbed of goat-roofed businesses. The Old Country Market in Coombs, British Columbia, has had the critters on its peaked roof since the 1970s. The market calls itself the "Home of the Goats on the Roof."

Arthur Urie, the market's general manager, says he considered trademarking "goats on the roof" in Canada but decided not to. He isn't concerned about the other roof-goated businesses, he says, because his has "a lot more to offer than what's on the roof."

As for Al Johnson's, he adds, "our goats are bigger than their goats."

from ArsTechnica.com, 2010-Jun-17, by Matthew Lasar:

Study: net neutrality could lead to "devastating" job losses

If you're looking for the Armageddon version of net neutrality analysis, search no further than a  new study released by New York Law School's Advanced Communications Law & Policy Institute. The assessment, titled Net Neutrality, Investment & Jobs, damns the Federal Communications Commission's proposed net neutrality rules as "destabilizing" and suggests they could "place the nation's economy at even greater risk."

The passage of such rules "could have devastating impacts across the ecosystem between 2010 and 2015," warn authors Charles M. Davidson and Bret T. Swanson. The assessment comes as the FCC released a Notice of Inquiry on its new Open Internet proposals on Thursday, and AT&T's threat that such proposals could cause it to downgrade its investment in its U-Verse IP-video network.

How devastating would this impact be? The paper claims that wireless and wireline broadband could suffer huge investment losses as a consequence of the rules. A ten percent drop in investment could rob the United States of 502,000 jobs with a $62 billion impact on its Gross Domestic Product. Three times that decline could punish the economy with a loss of 604,000 jobs and $80 billion in GDP loss.

"Despite FCC assertions to the contrary, history suggests that the Commission is incapable of micromanaging a dynamic sector via regulatory fiat and that such action results in consumer welfare and economic losses," the study asserts.

Apocalypse times three

Ars readers who dislike the dispassionate tone associated with most economics papers will find this one refreshing. Its subheadings include the following: "Apocalypse Now? Assessing the Impact of Proposed Net Neutrality Rules on Investment & Jobs in the Broadband Ecosystem." The question, of course, is how the study's authors came up with those half-a-million job-loss estimates.

First, the agency's proposals could block "voluntary partnerships and transactions with upstream providers of content, applications, and services," the document warns. Indeed the FCC's net neutrality plan, as released late last year, worried out loud where the freedom to cut these kind of deals could go.

"A broadband Internet access service provider that is also a pay television provider could charge providers or end users more to transmit or receive video programming over the Internet in order to protect the broadband Internet access service provider's own pay television service," the document speculated. "Alternatively, such a broadband Internet access service provider could seek to protect its pay television service by degrading the performance of video programming delivered over the Internet by third parties."

But Net Neutrality, Investment, and Jobs argues that as more video watching migrates to the Web, companies and investors will need to find "new hybrid business models to successfully manage this historic transition." Internet video doesn't pay yet, the paper contends. Video accounts for 73 percent of consumer Internet traffic, but just 8 percent of consumer Internet revenue. So new revenue models will have to be found—a prospect supposedly foreclosed by the agency's proposed rules.

Second, net neutrality could block needed Quality of Service techniques to manage user traffic, especially when it comes to handling latency-sensitive services and video. The survey notes the ongoing AT&T/iPhone network traffic malaise, then quotes a sympathetic assessment of the problem:

Unless a long-term plan is put in place that addresses and manages the traffic at a very granular level, the cost incurred due to an explosive demand will become unsustainable by 2013. At that point the revenue being generated could fall below the cost of sustaining such traffic. However, if the operators attack the problem using several different strategies, the growth can be managed and brought in line with the technology evolution such that the industry can take advantage of the falling per megabit costs.

Restricting experimentation on business models for network management "would exacerbate existing problems and allow a tiny number of users and applications to completely dominate the network, degrading service and value for other users," the report fears. And if various cybersecurity technologies which employ network management are also hamstrung, "then these technologies will become vastly more expensive to deploy and will therefore be less widely used."

Negative shocks

So how does the study extrapolate half-a-million jobs from these negative prospects? It takes existing projections of broadband related job growth, then plugs in the "negative shock" of net neutrality rules along four percentage tiers of possible investment decline: ten percent, twenty, third, and a "severe wireless drop." Bottom line: the prospect of 100,000 to 200,000 lost jobs each year over the next five years, with negative ripple effects in the healthcare and energy sectors.

Why would those seemingly nice people at the FCC put the nation in such economic jeopardy? In the face of overwhelming industry opposition to the Commission's Open Internet proposals, the Commission has "panicked," the report asserts, and is now resorting to the implementation of "century-old common carrier requirements" on broadband. "Such actions reflect only a selfish determination to consolidate regulatory power within an agency that has proven time and again to be incapable of micromanaging a dynamic sector like broadband," the report concludes.

Study author Charles Davidson is the director of New York Law School's Advanced Communications Law & Policy Institute. Bret Swanson runs the Entropy Economics research firm.

from National Affairs, 2010-Winter, by Bradley A. Smith:

The Myth of Campaign Finance Reform

March 24, 2009, may go down as a turning point in the history of the campaign-finance reform debate in America. On that day, in the course of oral argument before the Supreme Court in the case of Citizens United v. Federal Election Commission, United States deputy solicitor general Malcolm Stewart inadvertently revealed just how extreme our campaign-finance system has become.

The case addressed the question of whether federal campaign-finance law limits the right of the activist group Citizens United to distribute a hackneyed political documentary entitled Hillary: The Movie. The details involved an arcane provision of the law, and most observers expected a limited decision that would make little news and not much practical difference in how campaigns are run. But in the course of the ­argument, Justice Samuel Alito interrupted Stewart and inquired: "What's your answer to [the] point that there isn't any constitutional difference between the distribution of this movie on video [on] demand and providing access on the internet, providing DVDs, either through a commercial service or maybe in a public library, [or] providing the same thing in a book? Would the Constitution permit the restriction of all of those as well?" Stewart, an experienced litigator who had represented the government in campaign-finance cases at the Supreme Court before, responded that the provisions of McCain-Feingold could in fact be constitutionally applied to limit all those forms of speech. The law, he ­contended, would even require banning a book that made the same points as the Citizens United video.

There was an audible gasp in the courtroom. Then Justice Alito spoke, it seemed, for the entire audience: "That's pretty incredible." By the time Stewart's turn at the podium was over, he had told Justice Anthony ­Kennedy that the government could restrict the distribution of books through Amazon's digital book reader, Kindle; responded to Justice David Souter that the government could prevent a union from hiring a writer to author a political book; and conceded to Chief Justice John Roberts that a corporate publisher could be prohibited from publishing a 500-page book if it contained even one line of candidate advocacy.

In June, the Court issued a surprising order. Rather than deciding Citizens United, the justices asked the parties to reargue the case, specifically to consider whether or not the Court should overrule two prior decisions on which Stewart had relied: Austin v. Michigan Chamber of Commerce, a 1990 case upholding a Michigan statute that prohibited any corporate spending for or against a political candidate, and McConnell v. Federal Election ­Commission, the 2003 decision that upheld the constitutionality of the 2002 McCain-Feingold law. The Citizens United case was reargued on September 9, and a decision is pending. But however the Court rules, the debate over campaign-finance laws appears to have suffered a shock.

To anyone following the evolution of the campaign-finance reform movement, it should have been obvious that book-banning was a straightforward implication of the McCain-Feingold law (and the long line of statutes and cases that preceded it). The century-old effort to constrict the ways our elections are funded has, from the outset, put itself at odds with our constitutional tradition. It seeks to undermine not only the protections of political expression in the First Amendment, but also the limits on government in the Constitution itself — as well as the understanding of human nature, factions and interests, and political liberty that moved the document's framers.

By putting the point so bluntly before the Supreme Court, ­Malcolm Stewart may have inadvertently set off a series of events that could, in time, erode the claim to moral high ground upon which the ­campaign-finance reform movement has always relied. At the very least, his frankness invites us to consider the origins and consequences of that movement — and the implications of its efforts for some cherished American freedoms.

THE MISCHIEFS OF FACTION

Concerns about the political influence of the wealthy have never been far from the surface of American political life. The effort to restrict political spending — with the twin goals of preventing corruption and promoting political equality — began in earnest in the late 19^th century. But in order to understand that movement and the intense debate it spawned, it is necessary to look back even further — to the founding of the American republic.

Figuring out how to keep special interests under control was a dilemma at the core of the Constitutional Convention. James Madison's most original contribution to political thought may well be his effort, in the Federalist Papers, to demonstrate how the new Constitution would ensure that private interests could not seize control of the government and use its power for their private benefit. Federalist No. 10 in particular addressed the tendency toward, and the dangers of, a government controlled by what Madison termed "factions."

In that essay, Madison recognized that there will always be individuals and interests seeking to use the government to their own ends. His entire approach to government, after all, was based on the notion, expressed in Federalist No. 51, that government is "but the greatest of all reflections on human nature" — and that by nature, men are not angels. Because partiality, the ultimate cause of faction, was "sown into the nature of man," Madison argued in No. 10, the causes of faction could not be controlled in a free republic — at least not without "destroying the liberty that is essential to its existence." This, he quickly added, would be a cure "worse than the disease." Madison's approach to the problem was therefore not to limit the emergence of factions, but to control their ill effects and, where possible, even to harness them for good.

To achieve this end, the Constitution relied on three primary devices. One was the separation of powers within the federal government. In three of the Federalist Papers — Nos. 47, 48, and 49 — Madison elaborated at length on how the separation of powers would protect liberty and, by implication, prevent "factions" (what we would call special interests) from gaining control of the government. The other two devices, federalism and the idea of enumerated powers, were to work in tandem. The creation of separate spheres of action for the various state and federal governments — and the sheer size of the republic — would make it difficult for factions to gain control of the levers of power. ­"­[T­]­he society itself will be broken into so many parts, interests, and classes of ­citizens," wrote Madison in Federalist No. 51, "that the rights of ­individuals, or of the minority, will be in little danger." Because the federal government would concern itself only with matters of "great and aggregate interests" — such as national defense, foreign policy, and regulation of commerce between the states — factions would be limited to minor squabbles of local concern, where they could do relatively little harm. The idea, then, was not to limit the freedom of factions, but to divide and limit the power of government itself so that factional interests could not dominate American politics. And the very fact of the multiplicity and diversity of factions would be a limit on the power of governing majorities.

Of course, a fourth bulwark was soon added: the Bill of Rights, and in particular the First Amendment. The First Amendment was in part a reflection of Lockean principles of natural rights. In Cato's ­Letters — which constitutional historian Clinton Rossiter has called "the most popular, quotable, esteemed source of political ideas in the colonial period" — John Trenchard and Thomas Gordon wrote that freedom of speech was "the right of every man." But the First Amendment guarantees of free speech, assembly, and press were not seen purely as protections against government encroachment on natural rights. Rather, as political scientist John Samples notes, the founders believed that "the liberty to speak would force government officials to be open and accountable." During the crisis over the Alien and Sedition Acts in the early years of the new republic, Madison himself noted that the "right of freely examining public characters and measures, and of communication...is the only effectual guardian of every other right." As Samples argues, these founders realized that for "knowledge to inform politics and decision making, it must be publicly available. If the government suppresses freedom of speech, it prevents such knowledge from becoming public." Thus, freedom of speech was seen as both an individual liberty and a means of advancing the public interest.

Despite these protections, spending on political campaigns was often a source of concern in antebellum America, especially after the rapid expansion of the franchise and the rise of mass campaigns for the presidency and other offices. In 1832, the Bank of the United States spent approximately $42,000 — the equivalent of about a million ­dollars today, in inflation-adjusted terms — to try to defeat Andrew Jackson, who was seeking to revoke the bank's charter. With the growth of industry in the aftermath of the Civil War, political spending began to rise ­rapidly — and corporations became an important source of campaign funding. It has been estimated that by the campaign of 1888, the national Republican Party and its state affiliates were receiving 40 to 50% of their campaign funds from corporations (which benefited from high tariffs supported by the GOP). Democrats, though usually poorer, had their own financial titans — such as banker August Belmont and later his son, August Belmont, Jr., who could be counted on for at least $100,000 (nearly $2 million in inflation-adjusted terms) in just about every campaign in the last half of the 19^th century.

But even as money was becoming more important to campaigns, the Constitution's limits on government power (which, in the view of the framers, would also limit the power of factions to manipulate public policy) began to fall out of favor in some important quarters. Beginning in the late 19^th century, the influential Progressive movement launched a sharp critique of the founders' notions of enumerated powers and limited government, and even federalism and the separation of ­powers. Progressive theorists such as Herbert Croly and Columbia University law professor Walter Hamilton railed against the constraints that the Constitution placed on government power. ­Hamilton argued that the Constitution was "outworn" and "hopelessly out of place." Croly argued for the need to "overthrow" the "monarchy of the ­Constitution." ­Eltweed Pomeroy — a New Jersey glue manufacturer who became prominent as an author and the leader of the National Direct Legislation League — argued that "representative government is a failure," and sought ways to bypass the checks and balances of the constitutional ­system. In short, the Progressives' goal was a more energetic, less restrained government, which they believed was necessary to meet the demands of a modern industrial society.

It was in this context of hostility to federalism, checks and balances, and limited government that the modern drive to restrict political speech emerged. It started not as an effort to protect our constitutional arrangements from factions that would overpower them, but rather an effort to overcome our constitutional limits on the power of ­government. It was also intended to overcome the loud, messy, unpredictable democratic process, so as to empower a more "elevated" vision of government.

At the 1894 New York state constitutional convention, the progressive Republican icon Elihu Root called for a prohibition on corporate political giving. "The idea," said Root, "is to prevent...the great railroad companies, the great insurance companies, the great telephone ­companies, the great aggregations of wealth from using their corporate funds, directly or indirectly, to send members of the legislature to these halls in order to vote for their protection and the advancement of their interests against those of the public." Root explained that he was concerned about "the giving of $50,000 or $100,000," amounts equal to roughly $1.2 or $2.4 million today. His effort ultimately failed to change the laws in New York — but it did effectively launch the modern movement to limit campaign contributions and speech.

THE PARTY OF SELF-INTEREST

At the same time that Root's speech gave rise to a movement, it also pointed to one of that movement's fundamental weaknesses. Legal historian Allison Hayward of George Mason University Law School argues that Root's real objective was less to secure passage of his proposal than to score partisan points against the Democrats (whose leaders were then being grilled for accepting bribes from the Sugar Trust). Thus, the movement was born less from noble ideals of good government than from ignoble motives of partisan gain.

This has remained a fundamental dilemma for the "reform" movement, as the century-old effort to restrict and regulate campaign spending has come to be known. If the problem is that venal legislators are betraying the public trust in exchange for campaign contributions, why would we expect them not to be equally motivated by base impulses when passing campaign-finance legislation? Wouldn't the ability to ­control political speech empower the faction that wields it, rather than constraining the power of all factions? A review of the evidence suggests this concern is well founded.

After Republican William McKinley won the presidential election of 1896 with corporate support organized by the legendary political strategist Mark Hanna, the Democratic-controlled legislatures of ­Missouri, Tennessee, and Florida (three states that had voted for McKinley's ­opponent, William Jennings Bryan), as well as the legislature in Bryan's home state of Nebraska, passed bills prohibiting corporate spending and contributions in state races. Even if one accepts that the authors of these state bans were sincere in their belief that limiting the speech of McKinley and his allies was in the public interest, it is still easy to recognize the danger of regulators' mistaking their partisan advantage for the public good.

The first federal law in this arena, passed in 1907, was also a ban on corporate contributions to campaigns. The law was dubbed the Tillman Act, after its sponsor, South Carolina senator "Pitchfork Ben" Tillman. Tillman wrote and said little of his motives for sponsoring the ban on corporate contributions, but he hated President ­Theodore Roosevelt and appears to have wanted to embarrass the president (who had relied heavily on corporate funding in his 1904 election campaign). Tillman's racial politics also clearly contributed to his interest in controlling corporate spending: Many corporations opposed the racial segregation that was at the core of Tillman's political agenda. Corporations did not want to pay for two sets of rail cars, double up on restrooms and fountains, or build separate entrances for customers of different races. They also wanted to take advantage of inexpensive black labor, while Tillman sought to keep blacks out of the work force (except as indebted farm laborers).

Corporations supported Republicans, and Tillman — a Democrat, like most post-war Southern whites — often bragged of his role in perpetrating voter fraud and intimidation in the presidential election of 1876 in order to overthrow South Carolina's Republican reconstruction government. It is clear, then, that Tillman was no "good government" reformer; and far from being born of lofty ideals, federal campaign-finance regulations were, from their inception, tied to questionable efforts to gain partisan advantage.

Within a few years of the Tillman Act, in 1911, came "publication" laws requiring disclosure of campaign contributors and limits on campaign expenditures. These were followed by the Federal Corrupt Practices Act of 1925, aimed at tightening the Tillman Act's limits on corporate donations. In 1943, the Smith-Connally Act prohibited contributions to candidates by labor unions. In 1947, Congress extended the ban on corporate and union contributions to cover "expenditures" made directly to vendors in behalf of campaigns, rather than contributed to candidates or parties.

While these laws influenced the way in which groups and individuals participated in politics, they did little to stem the overall flow of money into campaigns, due to weak enforcement mechanisms and various loopholes that could readily be exploited. The Federal Election Campaign Act, passed in 1972 and substantially amended in 1974, sought to address these problems by creating the most comprehensive set of regulations in history and an independent agency, the Federal Election ­Commission, to enforce the law.

The FECA maintained the ban on corporate and union contributions and expenditures, instituted a detailed system of reporting on contributions and expenditures, and placed limits on contributions and expenditures by individuals, including any expenditure "relative to" a federal candidate. Individual contributions to candidates were limited to $1,000 (a limit that has since been raised to $2,400), and contributions to Political Action Committees were capped at $5,000. PACs, in turn, were limited to contributing $5,000 to candidates. The law also limited total giving in an election cycle (no person may give more than $115,500 over two years to candidates and PACs combined), and placed a host of limits on the sizes of various other contributions.

The Supreme Court pulled back some of these limits in the 1976 case Buckley v. Valeo, holding that FECA's limits on expenditures made independently of a candidate violated the First Amendment. The decision further confined regulation so that it covered only expenditures that "expressly advocated" the election or defeat of a candidate, using specific words such as "vote for" or "vote against." This allowed for heavy spending on "issue ads" that might criticize or praise a candidate but stop short of expressly urging a vote one way or the other.

The 2002 McCain-Feingold law attempted to cut off this spending, which became known as "soft money." Among its many provisions, McCain-Feingold prohibited political parties from accepting any unregulated contributions, and prohibited corporate or union spending on any cable, broadcast, or satellite communication that mentioned a candidate within 30 days of a primary or 60 days of a general election. The law applied to non-profit membership corporations, such as the Sierra Club or the National Rifle Association, as well as to for-profit ­corporations. This is the law that Citizens United is alleged to have violated.

Even this account understates the complexity of the law. In an amicus brief filed in the Citizens United case, eight former FEC commissioners note that the FEC has now promulgated regulations for 33 specific types of political speech, and for 71 different types of "speakers." The statute and accompanying FEC regulations total more than 800 pages; the FEC has published more than 1,200 pages in the Federal Register explaining its decisions; and it has issued more than 1,700 advisory opinions since its creation in 1976.

Considered in detail, each step in the effort to limit campaign spending turns out to advantage the party that sought it. If its own numbers are insufficient to pass the legislation (as was the case with McCain-­Feingold in 2002), then it seeks to broaden its base by adding incumbent-­protection sweeteners to attract enough members of the opposing party to create a bipartisan majority. John Samples notes that McCain-­Feingold drew most of its support from Democrats — who, he argues, saw long-term electoral disaster in the growing Republican fundraising edge, which was increasing after Republicans won the presidency in 2000. But to gain a legislative majority, the minority Democrats had to gain Republican votes; Samples finds that the Republicans who supported McCain-Feingold were, by and large, those most in danger of losing their seats. For them, the incumbent-benefit protections of the law made it irresistible.

Samples makes the Madisonian observation that "politicians use political power to further their own goals rather than the public ­interest....Campaign finance laws might be, in other words, a form of ­corruption." Noting that "scholars date the largest decline in congressional electoral competition from 1970" and that the Federal Election ­Campaign Act — the foundation of modern campaign-finance law — was passed in 1972, Samples points out that "the decline in ­electoral competition and the new era of campaign finance regulation are virtually conterminous."

This is no accident. Since the passage of the FECA, the average incumbent spending advantage over challengers in U.S. House races has soared from approximately 1.5-to-1 to nearly 4-to-1. Incumbents begin each cycle with higher name recognition and a database of past contributors, making it easier to raise more money through small contributions from more people. They also typically make the decision to run earlier than challengers do — since a challenger often waits to see if the incumbent will run before making his choice — so they have more time to raise small contributions. And because campaign-finance regulations essentially require that candidates fill their coffers in small increments, the law clearly advantages the incumbents who passed it.

The effect of campaign-finance regulations has therefore been to help the people who passed them and to strengthen special interests, rather than to cleanse American politics of the influence of self-­interested ­factions. Even the well-meaning reformers, it appears, have failed at their stated goals.

A FAILURE IN PRACTICE

Campaign-finance reform has not managed either to promote political equality or prevent corruption. And data show that one reason campaign-­finance regulations are of little value in attacking corruption is that contributions simply don't corrupt politicians. In a 2003 article in the Journal of Economic Perspectives, three MIT scholars — ­Stephen ­Ansolabehere, James Snyder, Jr., and John de Figueiredo — surveyed nearly 40 peer-reviewed studies published between 1976 and 2002. "­[I]­n three out of four instances," they found, "campaign contributions had no statistically significant effects on legislation or had the ‘wrong' sign — ­suggesting that more contributions lead to less support." Given the difficulty of publishing "non-results" in academic journals, the authors suggested in another paper, "the true incidence of papers written showing campaign contributions influence votes is even smaller." ­Ansolabehere and his colleagues then performed their own detailed study, which also found that "legislators' votes depend almost entirely on their own beliefs and the preferences of their voters and their party," and that "contributions have no detectable effects on legislative behavior."

Truly corrupt legislators will, after all, be lured by the prospect of personal financial benefits, not merely holding office (since most ­legislators, at least at the congressional level, could make more money doing other things). Those on the recent who's-who list of corrupt politicians were all brought down by their love of money: Louisiana Democratic congressman William Jefferson was caught with $90,000 in bribe money stashed in his freezer; Ohio's Bob Ney enjoyed an all-expenses-paid golf outing in Scotland on the dime of disgraced lobbyist Jack Abramoff, and accepted thousands of dollars in gambling chips from a foreign businessman; California's Duke Cunningham solicited bribes and bought, among other things, a yacht; and Illinois governor Rod Blagojevich sought lucrative positions on corporate boards for himself and his wife. These politicians were corrupted by money and gifts given directly to them, not by funds provided to pay for pamphlets and ads.

Most legislators run for office because they have strong political beliefs, and they are surrounded most of their days by aides and ­constituents with similarly strong beliefs. On reflection, far from being counterintuitive, it seems only logical that legislators would not want to betray their political principles — or those of the electorate — for a campaign contribution. After all, votes — not dollars — are what ultimately get put into ballot boxes. And it would make little sense to anger one's constituents for a contribution that can only be used to try to
win those constituents back.

By insisting that campaign contributions corrupt members of Congress and the legislative process despite the repeated failure of dozens of systematic studies to find any evidence of such corruption, reform advocates ask us to set aside important speech rights without proving the need for doing so. Their assumption that the sheer scope of campaign spending somehow proves that our system is corrupted simply has no basis in evidence — and fails entirely to keep political spending in ­perspective. Total political spending in the U.S. in 2008 — for state, local, and federal races — amounted to approximately $4.5 billion. By comparison, the nation's largest single commercial advertiser, Proctor & Gamble, spent about $5 billion on advertising in the same year.

The second widely stated goal of "reform" is to promote political equality. Reformers argue that some people and organizations have more money to spend on political activity than others do, and that it is unfair to allow this discrepancy to give the wealthy a major advantage. But inequality is not unique to money: Some people have more time to devote to political activity, while others gain political influence because they have a special flair for organizing, speaking, or ­writing. It is not clear how political equality is enhanced when a Harvard law ­student can spend his summer volunteering on a campaign while a small-­business owner must spend his working.

In the political arena, money is a means by which those who lack talents or other resources with direct political value are able to participate in politics beyond voting. It thus increases the number of people who are able to exert some form of political influence. Limitations on monetary contributions therefore elevate those with more free time — such as retirees and students — over those (like most working people) who have less time, but more money. Such regulation also favors people skilled in political advertising over those skilled in growing corn or building homes; it favors skilled writers over skilled plumbers; it favors those, such as athletes and entertainers, whose celebrity gives them a public megaphone over people like stockbrokers and investors, who lack a public platform for their views. And this is before we arrive at the influence of media and other elites. Under the rules established by the "reform" regime, editorial-page editors, columnists, and talk-show hosts may endorse candidates — but others may not pay to take out an ad of equal size or length to explicitly endorse their candidates.

Easing the restrictions on campaign contributions would not ­constrain any of these other forms of political support. Rather, allowing more contributions simply permits more people to participate in the ­system — thus diffusing influence, rather than concentrating it. Campaign­-finance reform, then, actually undermines the effort to ­promote equal access to the political arena.

Campaign-finance reform hasn't succeeded in achieving various ­secondary goals often attributed to it, either. For example, the McCain-Feingold law included the "Stand by Your Ad" provision, which now requires candidates for federal office to state in each ad: "I'm So-and-So, and I approved this message." The idea was that forcing candidates to take direct responsibility for what they say would reduce negative advertising. Of course, it's worth questioning whether negative advertising should be reduced: As Bruce Felknor, the former head of the Fair Political Practices Committee, observed as far back as the 1970s, "without attention-grabbing, cogent, memorable negative campaigning almost no challenger can hope to win unless the incumbent has been found guilty of a heinous crime." But even leaving this question aside, the provision has failed miserably to curb negative campaigning. In 2008, for example, researchers at the University of Wisconsin found that more than 60% of Barack Obama's ads, and more than 70% of ads for John McCain — that great crusader for restoring integrity to our politics — were negative. Meanwhile, the required statement takes up almost 10% of every costly 30-second ad — reducing a candidate's ability to say anything of substance to voters.

Some also argue that reform will reduce the amount of time elected officials must spend fundraising, thus allowing them to devote more time to their official responsibilities. It turns out, though, that the campaign-­finance regulations themselves are the primary reason for the extensive time spent fundraising. Raising large amounts of money in small contributions is much more time-consuming than raising fewer large contributions.

Given these circumstances, it is almost impossible to argue that campaign-finance reform has improved government. Governing ­magazine — in connection with the (pro-campaign finance reform) Pew Charitable Trusts — regularly ranks state governments on the quality of their management. In both of Governing's last two studies, in 2005 and 2008, Utah and Virginia were ranked the best-governed states in the nation. Utah and Virginia also tied for first place in the first Governing survey, from 1999, and Utah ranked first in the second study in 2001. What do these two states have in common? Among other things, they appear on the short list of states that have no limits on campaign spending and contributions. Meanwhile, states such as Arizona and Maine — which have enacted full taxpayer financing of their state races — score unimpressive marks. In terms of management, Governing ranked Arizona in the middle of the pack, tied for 14^th with 17 other states. Maine was ranked next to last — ahead of only New Hampshire. This alone does not prove an inverse relationship between campaign-finance laws and good governance, of course, but it does help to show the absence of a direct relationship. At the very least, campaign-finance restrictions do not seem to improve government.

As campaign-finance reform has failed to achieve its goals, it has also exacted serious costs. Studies have shown that political spending helps voters to learn about candidates, to locate them on the ideological ­spectrum, and to be better informed about issues and contests. Reducing the amount that may be spent, and constraining the ways it may be used, can thus hurt the quality of political discourse. More ­important, the laws involve serious restrictions on the exercise of fundamental rights.

RESTRICTING RIGHTS

For years, advocates of campaign-finance regulation have worked to establish a reputation as plucky underdogs: the nation's moral ­conscience, fighting the good fight against powerful special interests. They did this even as the leading reform groups spent some $200 million in the 1990s and early in this decade to pass the McCain-Feingold bill. In addition to liberal donors like the Pew Charitable Trusts, the Carnegie Foundation, and the Joyce Foundation, the groups' financial backers included several large corporations and firms, among them Bear Stearns, Philip Morris, and Enron. Yet somehow the reformers successfully branded their opponents as the purveyors and defenders of a corrupt system, bent on protecting it for personal gain. This gambit won the reformers some moral authority, which they wielded to great effect — making deep inroads with Congress, the press, and the public.

This is why the unexpected turn in the oral argument of the ­Citizens United case caused such a stir (and such concern among campaign-finance-reform advocates). Americans, like most free people, react with visceral disgust to the notion of banning books. It is seen as a fundamental violation of the freedom of speech and the open exchange of ideas. To equate campaign-finance reform with book-banning is to threaten the moral high ground of the case for campaign-finance limits. Ceding that high ground would be very costly for reformers, since their efforts have produced so little in the way of demonstrable results.

But there is simply no question that restricting the freedoms guaranteed in the Bill of Rights — no less than side-stepping the limits on government power established by the Constitution itself — is inseparable from the movement's goals. Restrictions on campaign contributions and spending affect core First Amendment freedoms of speech, press, and assembly. While the Supreme Court has quite correctly never held that "money is speech," it has recognized, equally correctly, that limiting political spending serves to limit speech (by restricting citizens' ability to deliver their political messages). In fact, only one of the 19 Supreme Court justices to serve in the past 30 years — John Paul Stevens — has ever argued that political campaign and expenditure limits should not be treated as First Amendment concerns. Those who doubt that basic constitutional rights are at stake should imagine how they would react if the Supreme Court were to interpret the free exercise clause as allowing the faithful to hold their religious beliefs, but not to spend money to rent a church hall, purchase hymnals, or engage in church missions. Presumably, the move would be seen as much more than a mere regulation of property.

These limits on expression do not affect only wealthy donors or prominent candidates. On the contrary: Groups without a broad base of support are the ones that rely most heavily on large donors to make their voices heard. Almost by definition, political minorities, ­newcomers, and outcasts will find it harder to reach enough people to raise the money they need through many small contributions. Their base of support is simply too narrow. One can analogize the process to that of raising capital in financial markets: If no investor could put more than $5,000 into a company, large-scale IPOs would become a thing of the past. Established companies might be able to raise large amounts of capital from tens of thousands of small investors, but capital-intensive start-ups would be doomed.

So it is with political entrepreneurs, who would get nowhere without large donors. In the 1990s, for example, large-scale spending by Ross Perot gave voice to millions of Americans who were concerned that the major parties were failing to address the national deficit. Perot's spending did not "drown out" ordinary citizens, but rather helped them to be heard. In 2004, early contributions from a few big donors to the Swift Boat Veterans for Truth allowed the group to get its message on the air at a time when the national media were ignoring it. Once the group's first ads were seen by the public, the organization was bombarded with hundreds of thousands of small donations — and of course millions more supported or were influenced by the group's message. Similarly, large contributions by George Soros to MoveOn.org gave the organization the ability to contact millions of Americans and develop one of the most phenomenal grassroots political machines in American history.

Not surprisingly, it is often upon the most authentically grassroots candidacies and campaigns that the burden of regulation weighs ­heaviest. For example, in 2006, a group of neighbors in the unincorporated community of Parker North, Colorado, joined together to fight annexation into the neighboring city of Parker. Because they printed yard signs, made copies of a flyer, and formed an e-mail discussion group, they were charged with operating as an unregistered political committee. Three years later, their case remains entangled in the courts. And when Mac Warren ran for Congress in Texas in 2000, he spent just $40,000 on his campaign — roughly half of it his own money. All of his campaign materials contained the name and address of his campaign committee. But two pieces of literature failed to contain the required notice that the literature was paid for by the committee — and for that omission, Warren's long-shot campaign was fined $1,000 by the Federal Election Commission.

WORSE THAN THE DISEASE

As Madison understood, some people will always try to use government for their private aims. But with the Madisonian restraints on government rent-seeking largely discarded, campaign-finance regulation becomes a futile and misguided effort — one that, as Madison argued, is not only bound to fail, but also bound to make matters worse.

A classic example is the Tillman Act and its ban on corporate ­contributions. The law was easily evaded, it turns out, by having corporations make "expenditures" independently of campaigns, or by having executives make personal contributions reimbursed by their companies. And when the Tillman Act was extended to include unions in 1947, unions and corporations formed the first political action committees to collect contributions from members, shareholders, and managers to use for political purposes.

Later, when the Federal Election Campaign Act imposed dramatic contribution limits, parties and donors discovered "soft money" — ­unregulated contributions that could not be used directly for candidate advocacy, but could be used for "party-building" ­activities. Such party-building ­activities soon came to include "issue ads" — thinly veiled attacks on the ­opposition, or praise for one's own ­candidates — that stopped just short of urging people to vote for or against a candidate (instead typically ending with "Call Congressman John Doe, and tell him to support a better minimum wage for America's workers"). When the McCain-Feingold bill banned soft money, the parties — especially the Democrats — effectively farmed out many of their traditional functions to activist groups such as ACORN and MoveOn. When McCain-Feingold sought to restrain interest-group "issue ads" by prohibiting ads that mention a candidate from appearing within 60 days of an election, groups responded by running ads just outside the 60-day ­window. The National Rifle Association responded by launching its own satellite radio station to take advantage of the law's exception for broadcasters. Citizens United began to make movies.

Preventing this type of "circumvention" of the law has been a fixation of the "reform community" from the outset. Yet each effort has led to laws more restrictive of basic rights, more convoluted, and more detached from Madison's insights. Each effort also appears to be self-defeating, since the circumvention argument knows no bounds. As Madison would have appreciated, every time we close off one avenue of political participation, politically active Americans will turn to the next most effective legal means of carrying on their activity. That next most effective means will then become the loophole that must be closed.

This is how the Citizens United case found its way to the Supreme Court. When the case was reargued in September, solicitor general Elena Kagan — taking poor Malcolm Stewart's place at the podium — assured the Court that the government had never taken action against a book, and presumably never would. But in fact, after the election of 2004, the Federal Election Commission had conducted a two-year ­investigation of George Soros for failing to report as campaign expenditures the costs of distributing an anti-Bush book. The agency ultimately voted not to ­prosecute, but its authority to do so was never in question. And Kagan did not back away from the government's position that it had the authority to ban books should they, at some point, become a problem.

As the Supreme Court ponders whether campaign-finance ­restrictions assault Americans' First Amendment rights, academic champions of such "reform" efforts are laying the groundwork for yet more ­regulation. Legal scholars such as Harvard's Mark Tushnet, Ohio State's Ned Foley, and Loyola Law School's Richard Hasen — publisher of the "Election Law Blog" — have all argued that true reform will require open censorship of the press in order to assure political equality. Yale law professor Owen Fiss has argued that "we may sometimes find it necessary to ‘restrict the speech of some elements of our society in order to enhance the relative voice of others,' and that unless the [Supreme] Court allows, and sometimes even requires the state to do so, we as a people will never truly be free."

Until Citizens United, such Orwellian newspeak was largely buried in obscure academic journals. Malcolm Stewart's sin was to state openly the implications of campaign-finance reform — and, in doing so, to strip away the veneer of "good government" and moral authority so carefully cultivated by reform advocates (and so important to their power). As a result, Stewart might have launched the beginning of the end for America's failed experiment to limit factions by destroying the liberty that allows for them in the first place. When the Supreme Court decides the case, it will have the opportunity to reassert the wisdom of Madison's deep insight into human nature — and to protect those liberties that, while they may make factions possible, also define the republic designed to contain them.

Bradley A. Smith is the Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law at Capital University Law School in Columbus, Ohio, and chairman of the Center for Competitive Politics. He served on the Federal Election Commission from 2000 to 2005.

from the Wall Street Journal, 2010-May-4, by William McGurn:

When Apple Calls the Cops
The First Amendment doesn't only belong to journalists.

Jason Chen is a newsman. Or is he?

That's just one question raised by the raid on Mr. Chen's home by the San Mateo County, Calif., Sheriff's Office, which carted off some computers and other electronic equipment. The search warrant appears to be the result of an investigation into whether Mr. Chen broke the law when he bought an iPhone prototype that an Apple engineer left in a bar where he was celebrating his birthday.

Because Mr. Chen reported on the new iPhone for his website, Gizmodo.com, the seizure of his computers has renewed a heated debate about whether bloggers are real journalists. Traditionally, many in the mainstream press have disparaged bloggers, though in this case at least some press organizations—including the parent company that runs Mr. Chen's blog—argue that he is a full-time journalist whose home is his newsroom. The irony is how few connect Mr. Chen's First Amendment freedoms to those for corporations that were recently upheld in a landmark Supreme Court ruling.

The case was Citizens United v. Federal Election Commission. Citizens United is a nonprofit corporation that produced a documentary on Hillary Clinton. It sought to distribute the film via video-on-demand back when she was running in the Democratic presidential primaries. When a lower court agreed with the FEC that the McCain-Feingold restrictions applied to the Hillary film, the group appealed and won at the Supreme Court this past January.

Not long after, in his State of the Union Address, Barack Obama disparaged members of the Supreme Court sitting before him by accusing them of opening "the floodgates for special interests." Many focused on the president's rudeness. More troubling was his message: What President Obama was really saying is that the Wall Street Journal and ABC News and your hometown daily should be free to print or broadcast what they want during an election. But not organizations like Citizens United.

The High Court wisely rejected that logic. Writing for the majority, Justice Anthony Kennedy said that "The First Amendment protects speech and speaker, and the ideas that flow from each." In other words, the government can't restrict First Amendment rights based on the identity of the speaker."

Steve Simpson, a lawyer for the Institute for Justice, a libertarian public interest law firm, puts it this way: "Once the government gets in the business of deciding who can speak based on identity, it will then necessarily be involved in deciding what viewpoints get heard."

The classic view of the First Amendment holds all Americans are entitled to its rights by virtue of citizenship. These days, alas, too many journalists and politicians assume that a free press should mean special privileges for a designated class. The further we travel in this direction, the more the government will end up deciding which Americans qualify and which do not.

It's not just Mr. Chen. Two weeks ago in New Jersey, a state appeals court ruled that a hockey mom who blogs is not a journalist for the purposes of protecting her sources. The woman was being sued for derogatory comments she posted on a message board about a company that supplies software for the porn industry. At the federal level, meanwhile, a "shield law" protecting journalists from revealing their sources remains bogged down in Congress as legislators are forced to define who is legitimately a journalist and who is not.

Mr. Simpson points to another irony: Legislation now being pushed by Sen. Chuck Schumer (D., N.Y.) to scale back the Supreme Court's January decision would limit political speech for government contractors, for companies that owe TARP money, and for those that pass some threshold for foreign ownership.

It's an interesting proposition. I wonder: How many among the press who favor these chains being wrapped around corporations have thought through the implications for news organizations? The implications will be especially interesting if Congress ever does get around to approving that bailout for failing newspapers that the president says he's at least open to.

In Mr. Chen's case, all this may be moot if his troubles really have to do with buying property that is considered stolen under California law. In its reporting on the case, Gizmodo has already admitted paying $5,000 for the iPhone prototype. If the criminal case comes down to stolen property, whether or not he is deemed a bona fide journalist may not make much difference.

The larger point is that the best guarantee of good, independent journalism has always been the willingness of reporters and editors and publishers to run with the truth, protect their sources, and accept the consequences—even jail, if it comes to that. In short, we'll all be better served by a First Amendment that remains a fundamental right for all rather than a class privilege for some.

from the New York Times, 2010-Apr-25, printed 2010-Apr-26, p.A23, by Ross Douthat:

Not Even in South Park?

Two months before 9/11, Comedy Central aired an episode of “South Park” entitled “Super Best Friends,” in which the cartoon show's foul-mouthed urchins sought assistance from an unusual team of superheroes. These particular superfriends were all religious figures: Jesus, Krishna, Buddha, Mormonism's Joseph Smith, Taoism's Lao-tse — and the Prophet Muhammad, depicted with a turban and a 5 o'clock shadow, and introduced as “the Muslim prophet with the powers of flame.”

That was a more permissive time. You can't portray Muhammad on American television anymore, as South Park's creators, Trey Parker and Matt Stone, discovered in 2006, when they tried to parody the Danish cartoon controversy — in which unflattering caricatures of the prophet prompted worldwide riots — by scripting another animated appearance for Muhammad. The episode aired, but the cameo itself was blacked out, replaced by an announcement that Comedy Central had refused to show an image of the prophet.

For Parker and Stone, the obvious next step was to make fun of the fact that you can't broadcast an image of Muhammad. Two weeks ago, “South Park” brought back the “super best friends,” but this time Muhammad never showed his face. He “appeared” from inside a U-Haul trailer, and then from inside a mascot's costume.

These gimmicks then prompted a writer for the New York-based Web site revolutionmuslim.com to predict that Parker and Stone would end up like Theo van Gogh, the Dutch filmmaker murdered in 2004 for his scathing critiques of Islam. The writer, an American convert to Islam named Abu Talhah Al-Amrikee, didn't technically threaten to kill them himself. His post, and the accompanying photo of van Gogh's corpse, was just “a warning ... of what will likely happen to them.”

This passive-aggressive death threat provoked a swift response from Comedy Central. In last week's follow-up episode, the prophet's non-appearance appearances were censored, and every single reference to Muhammad was bleeped out. The historical record was quickly scrubbed as well: The original “Super Best Friends” episode is no longer available on the Internet.

In a way, the muzzling of “South Park” is no more disquieting than any other example of Western institutions' cowering before the threat of Islamist violence. It's no worse than the German opera house that temporarily suspended performances of Mozart's opera “Idomeneo” because it included a scene featuring Muhammad's severed head. Or Random House's decision to cancel the publication of a novel about the prophet's third wife. Or Yale University Press's refusal to publish the controversial Danish cartoons ... in a book about the Danish cartoon crisis. Or the fact that various Western journalists, intellectuals and politicians — the list includes Oriana Fallaci in Italy, Michel Houellebecq in France, Mark Steyn in Canada and Geert Wilders in the Netherlands — have been hauled before courts and “human rights” tribunals, in supposedly liberal societies, for daring to give offense to Islam.

But there's still a sense in which the “South Park” case is particularly illuminating. Not because it tells us anything new about the lines that writers and entertainers suddenly aren't allowed to cross. But because it's a reminder that Islam is just about the only place where we draw any lines at all.

Across 14 on-air years, there's no icon “South Park” hasn't trampled, no vein of shock-comedy (sexual, scatalogical, blasphemous) it hasn't mined. In a less jaded era, its creators would have been the rightful heirs of Oscar Wilde or Lenny Bruce — taking frequent risks to fillet the culture's sacred cows.

In ours, though, even Parker's and Stone's wildest outrages often just blur into the scenery. In a country where the latest hit movie, “Kick-Ass,” features an 11-year-old girl spitting obscenities and gutting bad guys while dressed in pedophile-bait outfits, there isn't much room for real transgression. Our culture has few taboos that can't be violated, and our establishment has largely given up on setting standards in the first place.

Except where Islam is concerned. There, the standards are established under threat of violence, and accepted out of a mix of self-preservation and self-loathing.

This is what decadence looks like: a frantic coarseness that “bravely” trashes its own values and traditions, and then knuckles under swiftly to totalitarianism and brute force.

Happily, today's would-be totalitarians are probably too marginal to take full advantage. This isn't Weimar Germany, and Islam's radical fringe is still a fringe, rather than an existential enemy.

For that, we should be grateful. Because if a violent fringe is capable of inspiring so much cowardice and self-censorship, it suggests that there's enough rot in our institutions that a stronger foe might be able to bring them crashing down.

from the Wall Street Journal, 2010-Apr-27, by Ayaan Hirsi Ali:

'South Park' and the Informal Fatwa
The veiled threats against the Comedy Central show's creators should be taken very seriously.

'South Park" is hilarious, right? Not any more.

Last week, Zachary Adam Chesser—a 20-year-old Muslim convert who now goes by the name Abu Talhah Al-Amrikee—posted a warning on the Web site RevolutionMuslim.com following the 200th episode of the show on Comedy Central. The episode, which trotted out many celebrities the show has previously satirized, also "featured" the Prophet Muhammad: He was heard once from within a U-Haul truck and a second time from inside a bear costume.

For this apparent blasphemy, Mr. Amrikee warned that co-creators Trey Parker and Matt Stone "will probably end up" like Theo van Gogh. Van Gogh, readers will remember, was the Dutch filmmaker who was brutally murdered in 2004 on the streets of Amsterdam. He was killed for producing "Submission," a film that criticized the subordinate role of women in Islam, with me.

There has been some debate about whether Mr. Stone and Mr. Parker should view the Web posting as a direct threat. Here's Mr. Amrikee's perspective: "It's not a threat, but it really is a likely outcome," he told Foxnews.com. "They're going to be basically on a list in the back of the minds of a large number of Muslims. It's just the reality." He's also published the home and office addresses of Messrs. Stone and Parker, as well as images of Van Gogh's body.

According to First Amendment experts, technically speaking this posting does not constitute a threat. And general opinion seems to be that even if this posting was intended as a threat, Mr. Amrikee and his ilk are merely fringe extremists who are disgruntled with U.S. foreign policy; their "outrage" merits little attention.

This raises the question: How much harm can an Islamist fringe group do in a free society? The answer is a lot.

Mohammed Bouyeri, a Dutch-Moroccan Muslim first thought to have been a minor character in radical circles, killed Theo van Gogh. Only during the investigation did it emerge that he was the ringleader of the Hofstad Group, a terrorist organization that was being monitored by the Dutch Secret Service.

The story was very similar in the case of the Danish cartoons of the Prophet Muhammad. The cartoons, drawn by Kurt Westergaard, were published in September 2005 to little notice but exploded five months later into an international drama complete with riots and flag-burnings. The man behind this campaign of outrage was an Egyptian-born radical imam named Ahmed Abu-Laban.

Prior to this conflagration, Mr. Abu-Laban was seen as a marginal figure. Yet his campaign ended up costing Denmark businesses an estimated $170 million in the spring of 2006. And this doesn't include the cost of rebuilding destroyed property and protecting the cartoonists.

So how worried should the creators of "South Park" be about the "marginal figures" who now threaten them? Very. In essence, Mr. Amrikee's posting is an informal fatwa. Here's how it works:

There is a basic principle in Islamic scripture—unknown to most not-so-observant Muslims and most non-Muslims—called "commanding right and forbidding wrong." It obligates Muslim males to police behavior seen to be wrong and personally deal out the appropriate punishment as stated in scripture. In its mildest form, devout people give friendly advice to abstain from wrongdoing. Less mild is the practice whereby Afghan men feel empowered to beat women who are not veiled.

By publicizing the supposed sins of Messrs. Stone and Parker, Mr. Amrikee undoubtedly believes he is fulfilling his duty to command right and forbid wrong. His message is not just an opinion. It will appeal to like-minded individuals who, even though they are a minority, are a large and random enough group to carry out the divine punishment. The best illustration of this was demonstrated by the Somali man who broke into Mr. Westergaard's home in January carrying an axe and a knife.

Any Muslim, male or female, who knows about the "offense" may decide to perform the duty of killing those who insult the prophet. So what can be done to help Mr. Parker and Mr. Stone?

The first step is for them to consult with experts on how to stay safe. Even though living with protection, as I do now in Washington, D.C., curtails some of your freedom, it is better than risking the worst.

Much depends on how far the U.S. government is prepared to contribute to their protection. According to the Danish government, protecting Mr. Westergaard costs the taxpayers $3.9 million, excluding technical operating equipment. That's a tall order at a time of intense fiscal pressure.

One way of reducing the cost is to organize a solidarity campaign. The entertainment business, especially Hollywood, is one of the wealthiest and most powerful industries in the world. Following the example of Jon Stewart, who used the first segment of his April 22 show to defend "South Park," producers, actors, writers, musicians and other entertainers could lead such an effort.

Another idea is to do stories of Muhammad where his image is shown as much as possible. These stories do not have to be negative or insulting, they just need to spread the risk. The aim is to confront hypersensitive Muslims with more targets than they can possibly contend with.

Another important advantage of such a campaign is to accustom Muslims to the kind of treatment that the followers of other religions have long been used to. After the "South Park" episode in question there was no threatening response from Buddhists, Christians and Jews—to say nothing of Tom Cruise and Barbra Streisand fans—all of whom had far more reason to be offended than Muslims.

Islamists seek to replace the rule of law with that of commanding right and forbidding wrong. With over a billion and a half people calling Muhammad their moral guide, it is imperative that we examine the consequences of his guidance, starting with the notion that those who depict his image or criticize his teachings should be punished.

In "South Park," this tyrannical rule is cleverly needled when Tom Cruise asks the question: How come Muhammad is the only celebrity protected from ridicule? Now we know why.

Ms. Ali, a former member of the Dutch parliament, is the author of "Nomad: From Islam to America—A Personal Journey through the Clash of Civilizations," which will be published next month by Free Press.

from the Washington Examiner, 2010-Apr-20:

To Clinton, criticism is terrorism

Former President Bill Clinton has warned in speeches and in a New York Times op-ed commemorating the April 19, 1995, Oklahoma City terrorist bombing that "there is a big difference between criticizing a policy or a politician and demonizing the government that guarantees our freedoms and the public servants who enforce our laws." Clinton even defined "demonizing the government" by pointing out that the Oklahoma City bombers were motivated by "the belief that the greatest threat to American freedom is our government, and that public servants do not protect our freedoms, but abuse them." Sound like any group you've heard about recently?

Just as he did in 1995, Clinton is again peddling the argument that a new wave of domestic terrorism is coming this time because millions of Tea Partying Americans have during the past year or more taken to the streets to protest, often loudly, many of the policies advanced by President Obama, Senate Majority Leader Harry Reid, House Speaker Nancy Pelosi, and the Democratic majority in Congress. What Clinton neglects to say, however, is that criticism of Obamacare, the economic stimulus program, corruption in Congress, out-of-control federal spending, and an exploding national debt is widely shared among moderates, independents, and conservatives, among many Democrats as well as Republicans. That is why recent public opinion surveys found that 80 percent of Americans no longer trust their government, while majorities nearly as big say their congressmen don't deserve to be re-elected, and disapproval of the president's job performance is headed toward the 60 percent mark.

If Clinton and other liberal Democrats who agree with him truly believe that the words of Tea Partiers and other critics of the Obama presidency will inspire acts of terrorism, it only seems logical to conclude that they would also endorse official suppression of such speech. They need look no further for a precedent than the 1798 "Act to Punish Certain Crimes Against the United States" -- one of the Alien & Sedition Acts. That law made it illegal for any person to "write, print, utter or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them." Thankfully, Thomas Jefferson, after whom Clinton is named, and a new Congress elected in protest of that law, promptly repealed it. It's Jefferson's descendants carrying the protest signs today.

from USA Today, 2010-Apr-29, by Aamer Madhani, with David Jackson contributing:

Obama blasted, 13 nations cited on religious freedom

A bipartisan U.S. commission on religious freedom says President Obama is softening his stand on protecting the right to one's faith at a time when religious persecution is on the rise, according to an annual report to be released today.

The 11th annual report by the U.S. Commission on International Religious Freedom says Obama's recent call for nations to respect "freedom of worship" rather than "religious freedom" allows regimes to claim they are not oppressing certain religions if those faiths exist in a form acceptable to the regime.

"When you start narrowing the discussion, the signal the administration is sending to the international community is that as long as they prop up a few churches or houses of worship (of minority faiths), there isn't going to be a problem," Leonard Leo, the chairman of the commission, told USA TODAY.

The report also criticizes the administration for failing to nominate an ambassador-at-large for religious freedom.

The ambassador-at-large post, which falls under the State Department, is a requirement of a 1998 law that mandated religious freedom be an aim of U.S. diplomacy.

The commission was established to monitor religious freedom and issue an annual report on U.S. efforts in that area. Commission members are appointed by Congress and the White House. It recommends which countries should be named "countries of particular concern" (or CPCs) for egregious violations and suggests penalties.

Among the 13 countries that the State Department has already named CPCs are Burma, China, Iran, North Korea and Saudi Arabia. The label requires the administration to consider whether to levy sanctions against the nations.

The 2010 annual report notes that Obama spoke about the importance of religious freedom in speeches in Turkey and Cairo early in his term. But since then, Obama has stopped using the term, it says.

The White House disagreed. "The president has spoken clearly and unequivocally about his support for religious freedom," White House spokesman Tommy Vietor said.

Steven Groves, an analyst at the Heritage Foundation, a conservative Washington think tank, said the change in the phrase raises a question about the administration's commitment to confront regimes in the Middle East and elsewhere, especially in Iraq and Iran where minority Christian and Muslim sects have been oppressed and even attacked.

"The term religious freedom carries with it a certain understanding in the international community that is a much broader right than the freedom of worship," Groves said.

The commission report slams U.S.-supported nations, such as Iraq and Pakistan, for failing to protect members of minority faiths who have been targeted with violence or discrimination.

In April 2009 in Ankara, Obama said that "freedom of religion and expression lead to a strong and vibrant civil society that only strengthens the state."

In subsequent speeches in China and Japan, Obama appeared to dial back his vision on religious freedom, according to the report. He referred to "freedom of worship" in Japan on Nov. 14 and used the same phrase in a town hall meeting with Chinese students two days later.

from the American Constitution Society, 2010-Apr-6, by Sherwin Siy:

The Trouble with ACTA

The Anti Counterfeiting Trade Agreement, or ACTA, has received a fair bit of attention in the technology press and elsewhere, more so than might have been anticipated by a trade agreement. Its staunchest opponents warn that it threatens basic freedoms of speech and due process, and jeopardizes access to effective medicines around the world. Its most vehement supporters claim that without it, thousands of American jobs will succumb to the whims of pirates and counterfeiters. Academics have raised constitutional concerns [See below -AMPP Ed.] about both its process and substance, while the President has offered it up as a tool to "crack down on practices that blatantly harm our businesses." At Public Knowledge, we remain gravely concerned about its potential effects on the way we access the Internet and use the media we buy.

So what is this ACTA? A simple trade agreement? A nefarious circumvention of domestic law and legislative procedure? Something in between? And what does it actually do? The fact that such basic questions about ACTA exist and persist points to one of its most prominent and central flaws: its lack of transparency. Only the basics are offered on the U.S. Trade Representative's (USTR) website-that it is to be a "plurilateral" trade agreement between a number of countries, designed to combat the infringement of intellectual property. More recently released "fact sheets" from the USTR provide outlines for the agreement's topics of discussion, including proposals on civil and criminal enforcement, border measures, and Internet issues. (The website also features letters of endorsement for the as-yet undisclosed agreement from proponents.). Importantly, ACTA is being implemented in the U.S. as a sole executive agreement, and not a treaty of a congressional-executive agreement that would require legislative debate, consent, or approval.

As for its actual substance, the text of ACTA remains, officially, a secret. Freedom of Information Act (FOIA) requests on the text itself or drafts thereof have been rebuffed with claims that disclosure would reveal "foreign government information" that was given to the U.S. under a confidentiality agreement. An early draft of a section of the "Internet chapter" was disclosed to a small number of industry representatives and a smaller number of civil society advocates (myself among the latter), but under a non-disclosure agreement that prevents me, or any of those other people, from discussing and debating the provisions we saw openly.

The rationale for this secrecy is not particularly clear. While draft text offered by other parties might fall into the category of foreign government information, it is becoming increasingly clear that foreign governments involved in the negotiations are interested in disclosing the text. (The European Parliament, for one, has passed a resolution calling for the text to be made public.). The other reason offered for this secrecy is that it is habitual in trade agreements not to disclose negotiating positions. Yet ACTA's status as a trade negotiation seems less based in the nature of its substance than in the convenience that this designation provides. Unlike other free trade agreements, ACTA deals solely with intellectual property (IP) -- a relatively specific (but broadly significant) aspect of law and policy -- and not with any questions of tariffs, export limitations, or any other of the other areas that might necessitate negotiating parties keeping their positions in private negotiations. To the contrary, ACTA appears to contain mostly requirements for the IP laws -- requirements not limited to the goals of enforcing copyrights and trademarks -- of participating countries. Those requirements include providing for statutory damages, various types of secondary infringement, and strongly suggest enforcement mechanisms like the controversial "graduated response" or "three-strikes" rules.

We know this because a series of leaks, which include what appear to be full text and country positions. Even as the USTR assures the public that the agreement won't (and as an executive agreement, certainly can't) change U.S. law, the leaked text includes provisions that require particular interpretations of U.S. law-much of it judicially-made case law subject to ongoing interpretation and evolution. For example, one part of the Internet chapter requires member countries to include doctrines of secondary liability for infringement, using definitions and terms that can easily be more expansive than what exists in current domestic law. While this may seem like a minor detail, the determinations of such minor details are the stuff that multi-billion dollar lawsuits like the Viacom/Google litigation are made of.

Even without legislative action by Congress, differences like these can have a real influence on the course of domestic law, as international agreements are used as persuasive authority in statutory interpretation. And the history of IP law and its continual expansion give us reason to be at least somewhat suspicious that ACTA might be a form of "policy laundering." This was the case with the Digital Millennium Copyright Act, the provisions of which, after failing to capture Congress' interest, were incorporated into the WIPO Internet Treaties and then brought back to the U.S. as international obligations. The fact that ACTA conveniently was raised as a trade issue-in a forum where negotiations are more closed-has raises suspicions that this history of opportunistic forum-shifting might be repeating itself.

But the potential effects of ACTA go beyond merely nudging interpretations of U.S. law in a new direction. Acceding to a new international agreement would hamper attempts to amend some of the flaws in our current law, locking us into a system that already has apparent flaws. ACTA's effects on the laws of other countries should also be taken into account, as we want to ensure that IP laws don't unduly hamper the free speech of other countries' citizens, or, to take a more commercial tack, that IP laws don't subject US technology companies, like the makers of digital recording devices or hosting websites, to overbroad copyright liability.

None of this is intended to stand in the way of ACTA's stated goals of reducing infringement and enforcing IP laws. But while we can all agree that we do want to reduce fraudulent goods and counterfeiting, ACTA's leaked text seems to indicate that it could do much more. We could cynically assume that this is the result of a hidden purpose -- if not by its negotiators, then by those seeking to influence them. Or more charitably, these substantial flaws are the result of a lack of open, public debate on these issues.

Which brings us back to the necessary first problem with ACTA that needs to be solved before the others can be addressed -- the issue of transparency. The lack of transparency not only prevents advocates from any side from engaging in an informed, intelligent debate on the issues, it leads to a process that necessarily has an artificially constrained view of the values at stake. An agreement as broad and far-reaching as ACTA seems to be needs to be subject to public scrutiny. If sunlight is the best disinfectant, than its lack may well encourage flaws to fester, threatening not just the health of the agreement, but also of our laws and policies.

Sherwin Siy is Deputy Legal Director and the Kahle/Austin Promise Fellow at Public Knowledge, where he focuses on emerging copyright issues and international effects on IP and technology policy.

from the Washington Post, 2010-Mar-26, by Jack Goldsmith and Lawrence Lessig:

Anti-counterfeiting agreement raises constitutional concerns

The much-criticized cloak of secrecy that has surrounded the Obama administration's negotiation of the multilateral Anti-Counterfeiting Trade Agreement was broken Wednesday. The leaked draft of ACTA belies the U.S. trade representative's assertions that the agreement would not alter U.S. intellectual property law. And it raises the stakes on the constitutionally dubious method by which the administration proposes to make the agreement binding on the United States.

The goal of the trade pact is to tighten enforcement of global intellectual property rules. The leaked draft, though incomplete in many respects, makes clear that negotiators are considering ideas and principles not reflected in U.S. law.

ACTA could, for example, pressure Internet service providers -- such as Comcast and Verizon -- to kick users offline when they (or their children) have been accused of repeated copyright infringement because of content uploaded to sites such as YouTube. It also might oblige the United States to impose criminal liability on those who "incite" copyright violation. The draft more generally addresses "IP infringement" and thus could extend some of its rules to trademark and possibly patent law in ways that, after inevitable international compromises, will depart from U.S. law. It also contemplates creating an international "oversight council" to supervise (and possibly amend) aspects of the agreement.

These proposals might or might not make sense. But they ought at least be subject to public deliberation. Normal constitutional procedures would require the administration to submit the final text of the agreement for Senate approval as a treaty or to Congress as a "congressional-executive" agreement. But the Obama administration has suggested it will adopt the pact as a "sole executive agreement" that requires only the president's approval.

Such an assertion of unilateral executive power is usually reserved for insignificant matters. It has sometimes been employed in more important contexts, such as when Jimmy Carter ended the Iran hostage crisis and when Franklin Roosevelt recognized and settled expropriation claims with the Soviet Union.

The Supreme Court, however, has never clarified the limits on such agreements. Historical practice and constitutional structure suggest that they must be based on one of the president's express constitutional powers (such as the power to recognize foreign governments) or at least have a long historical pedigree (such as the president's claims settlement power, which dates back over a century).

Joining ACTA by sole executive agreement would far exceed these precedents. The president has no independent constitutional authority over intellectual property or communications policy, and there is no long historical practice of making sole executive agreements in this area. To the contrary, the Constitution gives primary authority over these matters to Congress, which is charged with making laws that regulate foreign commerce and intellectual property.

The administration has suggested that a sole executive agreement in this instance would not trample Congress's prerogatives because the pact would not affect U.S. domestic law. Binding the United States to international obligations of this sort without congressional approval would raise serious constitutional questions even if domestic law were not affected. In any event, an anti-counterfeiting agreement made on the president's own authority could affect domestic law in at least three ways:

First, the noncriminal portions of this agreement that contemplate judicial enforcement can override inconsistent state law and possibly federal law. Second, the agreement could invalidate state law that conflicts with its general policies under a doctrine known as obstacle preemption, even if the terms are not otherwise judicially enforceable. Third, a judicial canon requires courts to interpret ambiguous federal laws to avoid violations of international obligations. This means courts will construe the many ambiguities in federal laws on intellectual property, telecom policy and related areas to conform to the agreement.

If the president proceeds unilaterally here, ACTA will be challenged in court. But the best route to constitutional fidelity is for Congress or the Senate to protect its constitutional prerogatives. When the George W. Bush administration suggested it might reach a deal with Russia on nuclear arms reduction by sole executive agreement, then-Sen. Joe Biden wrote to Secretary of State Colin Powell insisting that the Constitution required Senate consent and implicitly threatening inter-branch retaliation if it was not given. The Bush administration complied.

Congress should follow Biden's lead. If the president succeeds in expanding his power of sole executive agreement here, he will have established a precedent to bypass Congress on other international matters related to trade, intellectual property and communications policy.

These mostly secret negotiations have already violated the Obama administration's pledge for greater transparency. Embracing this deal by sole executive agreement would repudiate its pledge to moderate assertions of executive power. Congress should resist this attempt to evade the checks established by our Framers.

Jack Goldsmith and Lawrence Lessig are professors at Harvard Law School. Goldsmith is co-author of "Who Controls the Internet?" Lessig is the author of "Remix: Making Art and Commerce Thrive in the Hybrid Economy."

from the Washington Post, 2010-Apr-14, by Dana Milbank:

Obama's disregard for media reaches new heights at nuclear summit

World leaders arriving in Washington for President Obama's Nuclear Security Summit must have felt for a moment that they had instead been transported to Soviet-era Moscow.

They entered a capital that had become a military encampment, with camo-wearing military police in Humvees and enough Army vehicles to make it look like a May Day parade on New York Avenue, where a bicyclist was killed Monday by a National Guard truck.

In the middle of it all was Obama -- occupant of an office once informally known as "leader of the free world" -- putting on a clinic for some of the world's greatest dictators in how to circumvent a free press.

The only part of the summit, other than a post-meeting news conference, that was visible to the public was Obama's eight-minute opening statement, which ended with the words: "I'm going to ask that we take a few moments to allow the press to exit before our first session."

Reporters for foreign outlets, many operating in repressive countries, got the impression that the vaunted American freedoms are not all they're cracked up to be.

Yasmeen Alamiri from the Saudi Press Agency got this lesson in press freedom when trying to cover Obama's opening remarks as part of a limited press "pool": "The foreign reporters/cameramen were escorted out in under two minutes, just as the leaders were about to begin, and Obama was going to make remarks. . . . Sorry, it is what it is."

Alamiri's counterparts from around the world had similar experiences. Arabic-language MBC TV's Nadia Bilbassy had this to say of Obama's meeting with the Jordanian king: "We were there for around 30 seconds, not enough even to notice the color of tie of both presidents. I think blue for the king."

Lalit K. Jha of the Press Trust of India, at Obama's meeting with the Pakistani prime minister, reported, "In less than a minute, the pool was asked to leave." The Yomiuri Shimbun correspondent found that she was "ushered out about 30 seconds" after arriving for Obama's meeting with the Malaysian prime minister. Emel Bayrak of Turkey's TRT-Turk went to Obama's meeting with the president of Armenia but "we had to leave the room again after less than 40 seconds."

"When you only see the president for 15 or 20 seconds without him asking if you have any questions, it's very frustrating," said Laura Haim of France's Canal+, which persuaded the White House to include foreign outlets in the press pool. "It's very important for this president, who wants to restore the image of the United States, to have more access."

Obama's official schedule for Tuesday would have pleased China's Central Committee. Excerpts: "The President will attend the Heads of Delegation working lunch. This lunch is closed press . . . The President will meet with Prime Minster Erdogan of Turkey. This meeting is closed press. . . . The President will attend Plenary Session II of the Nuclear Security Summit. This session is closed press."

Reporters, even those on the White House beat for two decades, said it was the most restrictive set of meetings they had ever seen in Washington. They complained to both the administration and White House Correspondents' Association, which will discuss the matter Wednesday with White House press secretary Robert Gibbs.

The restrictions have become a common practice for the Obama White House. When Israeli Prime Minister Benjamin Netanyahu came to the White House a couple of weeks ago, reporters were kept away. Soon after that, Obama signed an executive order on abortion, again without any coverage.

Over the weekend, Obama broke with years of protocol and slipped off to a soccer game without the "protective" pool that is always in the vicinity of the president in case the unthinkable occurs. Obama joked about it later to Pakistan's prime minister, saying reporters "were very upset."

In "bilateral" meetings with foreign leaders, presidents usually take questions, or at least trade statements. But at most of Obama's, there were only written "readouts":

Canada: "The president and the prime minister noted the enduring strength of our bilateral partnership." India: "The two leaders vowed to continue to strengthen the robust relationship between the people of their countries." Pakistan: "President Obama began by noting that he is very fond of Pakistan."

Reporters, many in a "filing center" about a quarter-mile away from the leaders' meetings, relied on dispatches from colleagues allowed in as the press pool. The dispatches, over three days, were uniform: "They were too far away to hear conversation. . . . Again, Obama had nothing to say of substance that pooler heard. . . . We were in for all of 30 seconds. No news; no quotes and again no statements. . . . Same deal folks."

Finally, Obama walked over to a group of reporters Monday afternoon. Would he give them an account of his meetings? "I'll let somebody else do it," he said with a smile.

from the Wall Street Journal, 2010-Apr-19, by L. Gordon Crovitz:

Is Internet Civility an Oxymoron?
Unmoderated, anonymous comments on Web sites create more noise than wisdom.

For those of us tempted to hope that new technology might improve human nature, the Web has proved a disappointment. The latest online reality: comment sections so uncivilized and uninformative that it's clear the free flow of anonymous comments has become way too much of a good thing.

The common practice is for news and other Web sites to treat all comments equally, whether made anonymously or using real names, via obscenities or reasoned debate. The hope was that people would be civil. Instead, many comment areas have become wastelands of attacks and insults.

"Too many of us like to think that we have made great progress in human relations," wrote Doug Feaver earlier this month in the Washington Post. "Unmoderated comments provide an antidote to such ridiculous conclusions." Mr. Feaver writes a blog called dot.comments that covers what readers are saying on the Post's site.

Part of the problem is that people who conceal their names seem to feel free to say things they never would if their identities were known. There are obvious cases—dissidents living in authoritarian countries—where anonymity is needed. But as Miami Herald columnist Leonard Pitts Jr. wrote recently, message boards dominated by anonymous comments often become "havens for a level of crudity, bigotry, meanness and plain nastiness that shocks the tattered remnants of our propriety."

There are remedies. Popular commentators on many sites and blogs go by their own names or at least by recognizable noms de plume, so their comments can be tracked. Sites letting readers rank the reputation of comment writers also help.

Some edgier Web sites have been leaders in taming message boards. Gawker.com last year put in place a system that gives preferred placements for comments from people who get high marks among the site's readers and editors. Founder Nick Denton explained, "It's our party; we get to decide who comes." At first, the number of comments dropped off, but comments then doubled over the past nine months as readers vied to become trusted commentators.

Peer News, a new site launching in Hawaii and funded by eBay founder Pierre Omidyar, will not permit comments at all. Editor John Temple said anonymity had so reduced responsibility that comments sections have been dominated by "racism, hate, ugliness" and "reflect badly on news organizations that have them."

Other media outlets permit comments but filter them to give readers control over which ones they see. The Wall Street Journal's Web site gives readers the option of seeing only comments from paying subscribers (which is how I first review responses to these columns). The Washington Post announced this month it soon will rank "trusted commentators" based on their complying with guidelines and using real names. Readers will be able to access comments from less trusted commentators, but only if they click further to do so.

By now, there's an entire vocabulary to describe bad behavior, from flaming (hostile interactions between people on comment boards) to astroturfing (anonymous postings made to appear as grass-roots efforts that are actually organized political or PR efforts).

Used properly, the Web can deliver crowd-sourced useful information. As the "balloon boy" story was under way last year, National Public Radio's online commenters posted complex mathematical equations showing that the claim about a boy floating in a helium balloon his father had built could not be true. Here's what passes for flaming on NPR.org: "Show your math!"

A Web site launched this month called Unvarnished goes so far as to make anonymous comments its business model. It invites "community-contributed, business-focused assessments of professional performance" of named individuals, with commenters kept anonymous, which means readers have no way to assess their interests or biases. The subjects of comments can't remove them.

Michael Arrington of TechCrunch.com objected to this approach, writing sarcastically, "It's time for a centralized, well-organized place for anonymous mass defamation on the Internet." He figures that "we're going to be forced to adjust as a society," to forgive indiscretions and to get smarter about ignoring comments from sources whose credibility is low.

The Web is a great liberator, giving millions of people the ability to offer opinions with the ease once reserved for, say, newspaper columnists. The downside is that comment overload and anonymity create more noise than wisdom. Since it's now clear human nature hasn't improved with the transition to digital media, we should cheer efforts to make it as easy for readers to decide which commenters to trust as it has become to post the comments.

Technology, for all its benefits, is no substitute for readers' own judgments.

from the Asssociated Press, 2010-Apr-21, by David Bauder:

Muslim group warns 'South Park' creators of death

NEW YORK — A radical Muslim group has warned the creators of "South Park" that they could face violent retribution for depicting the prophet Muhammad in a bear suit during last week's episode.

The website RevolutionMuslim.com has since been taken down, but a cached version shows the message to "South Park" creators Trey Parker and Matt Stone. The article's author, Abu Talhah Al-Amrikee, said the men "outright insulted" the religious leader.

The posting showed a gruesome picture of Theo Van Gogh, a Dutch filmmaker who was shot and stabbed to death in an Amsterdam street in 2004 by a fanatic angered by his film about Muslim women. The film was written by a Muslim woman who rejected the Prophet Muhammad as a guide for today's morality.

"We have to warn Matt and Trey that what they are doing is stupid and they will probably wind up like Theo Van Gogh for airing this show," Al-Amrikee wrote. "This is not a threat, but a warning of the reality of what will likely happen to them."

The posting listed the addresses of Comedy Central's New York office and Parker and Stone's California production office. It also linked to a Huffington Post article that described a Colorado retreat owned by the two men.

CNN, which first reported the posting, said the New York-based website is known for postings in support of jihad, or holy war, against the West and Osama bin Laden.

Al-Amrikee told The Associated Press that the posting was made to raise awareness of the issue and to see that it does not happen again. Asked if Parker and Stone should feel threatened by it, he said "they should feel threatened by what they did."

He said he was disappointed that publicity about the posting focused more on the potential danger to the producers but admitted, "I could shoulder some blame" for it.

He said he "can't answer that legally" when asked if his group favored jihad. But he praised bin Laden.

"We look up to him and admire him for the sacrifices he has given for the religion," he said.

Last week's episode, the 200th for the cheeky and often vulgar cartoon, was intended to feature many of the personalities and groups that Parker and Stone insulted during the series' run.

In 2006, Comedy Central banned the men from showing an image of Muhammad on their show. They had intended to comment on the controversy created by a Danish newspaper's publishing of caricatures of the Islamic leader. Muslims consider any physical representation of their prophet to be blasphemous.

Instead, "South Park" showed an image of Jesus Christ defecating on President Bush and the American flag.

Comedy Central and the show's producers would not comment.

from the Wall Street Journal's Political Diary, 2010-Apr-12, by John Fund:

The Iron Fist Behind the Moonbeam

Polls show that one of the biggest obstacles facing Jerry Brown in his comeback bid to become governor of California is the sour memory older voters have of his eight years in the job between 1975 and 1983. Mr. Brown is roughly tied with Republican businesswoman Meg Whitman in general election poll matchups.

That may explain why Mr. Brown reacted so harshly to a TV ad criticizing his gubernatorial record briefly aired by the California Chamber of Commerce last week. The ad pointed out that Mr. Brown had opposed the now-legendary tax-cutting Proposition 13 and oversaw a dramatic increase in state spending. Reporters say both Mr. Brown and his wife Anne Gust, former CEO of clothing company The Gap, responded by placing calls to chamber members asking them to demand that the spot be taken off the air.

The ad was indeed suddenly pulled. Chamber head Al Zaremberg says his group "accomplished what we tried to accomplish" while acknowledging that "we probably got a little more attention than we expected." He confirmed that Mr. Brown, now the state's attorney general in charge of enforcing a great deal of business regulation, had "called members of our board."

With the Brown ad yanked, the chamber is running a more subdued spot suggesting viewers visit the Chamber's Web site for "facts and answers about our future." None of the state's candidates for governor are mentioned by name. The incident is a vivid illustration of the power of government regulators to silence or neuter any unwelcome political messages coming from the businesses under their heel.

from the Wall Street Journal, 2010-Jan-22:

A Free Speech Landmark
Campaign-finance reform meets the Constitution.

Freedom has had its best week in many years. On Tuesday, Massachusetts put a Senate check on a reckless Congress, and yesterday the Supreme Court issued a landmark decision supporting free political speech by overturning some of Congress's more intrusive limits on election spending.

In a season of marauding government, the Constitution rides to the rescue one more time.

Justice Anthony Kennedy wrote yesterday's 5-4 majority opinion in Citizens United v. Federal Election Commission, which considered whether the government could ban a 90-minute documentary called "Hillary: the Movie" that was set to run on cable channels during the 2008 Presidential campaign. Because it was funded by an incorporated group and was less than complimentary of then-Senator Hillary Clinton, the film became a target of campaign-finance limits.

The 2002 Bipartisan Campaign Finance Act, aka McCain-Feingold, banned corporations and unions from "electioneering communications" within 30 days of a primary or 60 days of a general election. Yesterday, the Justices rejected that limit on corporate spending as unconstitutional. Corporations are entitled to the same right that individuals have to spend money on political speech for or against a candidate.

Justice Kennedy emphasized that laws designed to control money in politics often bleed into censorship, and that this violates core First Amendment principles. "Because speech is an essential mechanism of democracy—it is the means to hold officials accountable to the people—political speech must prevail against laws that would suppress it by design or inadvertence," he wrote. The ban on corporate expenditures had a "substantial, nationwide chilling effect" on political speech, he added.

In last year's oral argument for Citizen's United, the Court got a preview of how far a ban on corporate-funded speech could reach. Deputy Solicitor General Malcolm Stewart explained that, under McCain-Feingold, the government had the authority to "prohibit the publication" of corporate-funded books that called for the election or defeat of a candidate.

That was a shock and awe moment at the Court, as it also should have been to a Washington press corps that has too often been a cheerleader for campaign-spending limits. Mr. Stewart was telling a truth already familiar to campaign-finance lawyers and the speech police at the Federal Election Commission. Former FEC Commissioner Hans von Spakovsky recalled yesterday that in 2004 the agency investigated whether a book written by George Soros critical of George W. Bush violated campaign laws. Liberals as much as conservatives should worry about laws that allow such investigations.

The Court's opinion is especially effective in dismantling McCain-Feingold's arbitrary exemption for media corporations. Thus a corporation that owns a newspaper—Dow Jones or the New York Times—retains its First Amendment right to speak freely. "At the same time, some other corporation, with an identical business interest but no media outlet in its ownership structure, would be forbidden to speak or inform the public about the same issue," wrote Justice Kennedy. "This differential treatment cannot be squared with the First Amendment."

For instruction and sheer entertainment, we also recommend Justice Antonin Scalia's concurring opinion that demolishes Justice John Paul Stevens's argument in dissent that corporations lack free speech rights because the Founding Fathers disliked them. "If so, how came there to be so many of them?" Mr. Scalia writes, in one of his gentler lines.

The landmark decision—which overturned two Supreme Court precedents—has already sent the censoring political class into orbit. President Obama was especially un-Presidential yesterday, putting on his new populist facade to call it "a major victory for big oil, Wall Street banks, health insurance companies" and other "special interests." Mr. Obama didn't mention his union friends as one of those interests, but their political spending will also be protected by the logic of this ruling. The reality is that free speech is no one's special interest.

New York Senator Chuck Schumer vowed to hold hearings, and the Naderite Public Citizen lobby is already calling for a constitutional amendment that bans free speech for "for-profit corporations." Liberalism's bullying tendencies are never more on display than when its denizens are at war with the speech rights of its opponents.

Perhaps one day the Court will go even further and overturn Buckley v. Valeo, the 1976 decision that was its original sin in tolerating limits on campaign spending. The Court did yesterday uphold disclosure rules, so a sensible step now would be for Congress to remove all campaign-finance limits subject only to immediate disclosure on the Internet. Citizens United is in any event a bracing declaration that Congress's long and misbegotten campaign-finance crusade has reached a Constitutional dead end.

from the Wall Street Journal, 2010-Feb-24:

Repealing the First Amendment
The campaign finance crowd has more ideas for limiting speech.

It didn't take long for Congress to try an end-run around the Supreme Court's landmark January decision in Citizens United v. FEC. With a campaign finance bill due to be introduced this week, Democrats are proposing to repeal the First Amendment, at least for some people.

Senator Chuck Schumer of New York and Representative Chris Van Hollen of Maryland want to prevent any company with more than 20% of foreign shareholders from spending money in U.S. elections, ban TARP recipients and government contractors from campaign spending, and require CEOs to pop up at the end of television commercials to "approve this message" just like politicians.

Maryland Democrat Donna Edwards and Michigan Democrat John Conyers are going further and proposing to amend the Constitution so it bars corporate free speech. John Kerry and Arlen Specter are also on board for a First Amendment rewrite. At least these Constitutional amenders are honest about their goals and what it requires to be legal.

Not so Messrs. Schumer and Van Hollen, who want to sneak their speech bans by degrees into legislation. While current law already prevents foreign corporations from participating in U.S. elections, their proposal would silence some five million Americans who work for domestic subsidiaries of foreign companies and whose money is generated in the U.S. As a Constitutional matter, that amounts to telling some Americans that they may not engage in political speech—a formula the Supreme Court has rejected in such other recent cases as Davis v. FEC.

The Democrats don't include unions in their speech bans, though the Supreme Court recently liberated unions from campaign-finance rules too. As former Federal Election Commission member Hans von Spakovsky points out, the Service Employees International Union often boasts of its hefty percentage of Canadian members. Should it be barred from donating to President Obama?

As for restricting campaign spending by government contractors, the Supreme Court explicitly laid out in Citizens United that the only rational basis for such a limit is corruption or the appearance of corruption. Independent spending of the kind the Court allowed doesn't count here because, unlike direct contributions to candidates, there is no potential for kickbacks. As the Center for Competitive Politics points out, restricting all contractors also runs afoul of the Constitution because the government provides its employees (teachers, doctors and so on) with benefits, and it may not make those things conditional on the contractors forfeiting their right to free speech.

We've long supported disclosure for campaign contributions, so voters can judge for themselves if certain donations are corrupting. But Mr. Schumer's version of disclosure is designed to discourage speech with complex regulation, including a new and separate disclosure regime with the Securities and Exchange Commission.

As for CEO appearances in advertisements, will trial lawyer donors have to do the same? How about SEIU chief Andy Stern? The double standard for unions and business betrays Mr. Schumer's real goal, which is a partisan fund-raising advantage for Democrats.

As a practical matter, all of this continues the game of whack-a-mole that the campaign-finance restrictionists have pursued for decades to little avail. They haven't stopped the flow of money into campaigns or produced cleaner government, but they have made fund-raising far more complex and legally difficult for donors and candidates. These new efforts are destined for a similar fate if they ever make it into law—and we hope Republicans filibuster them.

Citizens United blew a huge hole in the campaign finance rules, and there is no Constitutional way to refill it. The campaign-finance restrictionists should give up their misbegotten and illegal regulatory model and try deregulation and transparency instead. States like Virginia and Utah have no contribution limits but require disclosure and are among the best-run states in such traditional hallmarks of good government as economic health and development. The First Amendment has worked pretty well for 230 years. We don't need a rewrite.

from the New York Times, 2010-Feb-25, by Rachel Donadio, with Eric Sylvers contributing reporting from Milan, and Eric Pfanner from Paris:

Larger Threat Is Seen in Google Case

ROME — Three Google executives were convicted of violating Italian privacy laws on Wednesday, the first case to hold the company's executives criminally responsible for the content posted on its system.

The verdict, though subject to appeal, could have sweeping implications worldwide for Internet freedom: It suggests that Google is not simply a tool for its users, as it contends, but is effectively no different from any other media company, like newspapers or television, that provides content and could be regulated.

The ruling further complicates the business environment for Google in Europe, where it faces a wave of antitrust complaints. And it comes shortly after Google threatened to withdraw from China, citing sophisticated attacks by hackers there and Chinese demands that it restrict information available to local users.

Google's enormous search and advertising business depends heavily on its reach into every corner of the global Internet and on providing users access to as much digital content as possible, regardless of its origins or ownership.

The Italian move to hold the company or its executives responsible for text, photographs or videos made available by third parties through Google and its online services, like YouTube, poses a significant challenge to the company's business model, along with those of other Internet companies like Facebook and Twitter.

In Italy, where Prime Minister Silvio Berlusconi owns most private media and indirectly controls public media, there is a strong push to regulate the Internet more assertively than it is controlled elsewhere in Europe. Several measures are pending in Parliament here that seek to impose various controls on the Internet. Critics of Mr. Berlusconi say the measures go beyond routine copyright questions and are a way to stave off competition from the Web to public television stations and his own private channels — and to keep a tighter grip on public debate.

“It's a deliberate effort to control the means of communication,” said Juan Carlos de Martin, the founder of the Nexa Center at Turin's Polytechnic University, which studies Internet use in Italy.

Italy has one of the lowest rates of Internet use and e-commerce in Europe, and experts warned that the ruling on Wednesday could erode the nation's position further and limit information to young people, who watch television less than their parents.

In Milan, Judge Oscar Magi sentenced the Google executives in absentia to six-month suspended sentences for violation of privacy. Prosecutors said Google did not act fast enough to remove from the site a widely viewed video posted in 2006 showing a group of teenage boys harassing an autistic boy.

But Judge Magi, who has 90 days to issue his reasoning, cleared the Google executives of defamation charges. The three were Peter Fleischer, chief privacy counsel; David Drummond, senior vice president and chief legal officer; and George Reyes, a former chief financial officer. A fourth defendant, Arvind Desikan, charged only with defamation, was acquitted.

Internet activists and the American ambassador to Italy cried foul about the ruling, which some likened to punishing the mailman for delivering a nasty letter.

A spokesman for Google, Bill Echikson, called the ruling “astonishing” and said the company would appeal. In its blog, Google added that the ruling “attacks the very principles of freedom on which the Internet is built.”

Prosecutors said Google waited to remove the video until after complaints to the police by Vivi Down, an Italian group representing people with Down syndrome, whose name was mentioned by the boys in the video.

Google said it removed the video within two hours of receiving a formal complaint from the Italian police, two months after the video was first posted.

The boys, all minors, were not charged by prosecutors, but were sentenced by a different judge to community service. Prosecutors named the Google executives because Italian law holds corporate executives responsible for a company's actions.

Google maintains that the ruling contradicted a European Union directive on electronic commerce that gives service providers safe harbor from liability for the content they host.

But prosecutors argued that because Google handled user data — and used content to generate advertising revenue — it was a content provider, not a service provider, and therefore broke Italian privacy law. It prohibits the use of someone's personal data with the intent of harming him or making a profit.

“To say this is about censorship has a big media effect, but is false,” said Alfredo Robledo, one of the prosecutors. “This is about finding a balance between free enterprise and the protection of human dignity.”

Still, the upshot of the ruling, if it prevails on appeal, is that Google will be expected in Italy to monitor the content it hosts. Mr. Echikson, the Google spokesman, said that would be impossible considering that 20 hours of video are uploaded to its site every minute.

The American ambassador to Italy, David Thorne, said he was “disappointed” by the ruling.

“We disagree that Internet service providers are responsible prior to posting for the content uploaded by users,” he said in a statement, adding that Secretary of State Hillary Rodham Clinton had said that “free Internet is an integral human right that must be protected in free societies.”

Mr. Robledo said that a company like Google could easily find ways to monitor its content, and that it should not profit from advertising revenue generated from content that violated privacy laws. He said if Google had found a way to create filters in China, it could do the same in Italy, not to monitor political content “but to protect human dignity.”

Google disagreed.

“If company employees like me can be held criminally liable for any video on a hosting platform, when they had absolutely nothing to do with the video in question, then our liability is unlimited,” said one of the three executives, Mr. Fleischer.

The Google ruling comes amid other proposed legislation that would seek to bureaucratize the Internet in Italy, including the highly contested Italian version of a European directive that would compel online broadcasters to seek the same licensing agreements as broadcast television. Google lobbied for changes to the proposal.

Paolo Romani, a deputy communications minister who sponsored the measure, said the issue was copyright protection. “It has nothing to do with the fact that our prime minister also owns television stations,” he said. “It's in Berlusconi's interest not to be accused of conflict of interest.”

Another proposal pending in Italy, tucked into a bill on wiretapping, would require blogs to publish corrections within 48 hours, as newspapers are required to do, while a third would make sites responsible for anonymous comments posted on them.

Paolo Gentiloni, a leading opposition member and a former communications minister, said Internet regulation was inevitably political. Today in Italy, he said, “political power is in the hands of people who do TV, not the Internet.”

“The slower broadband is, the better it is for a broadcasting-oriented government,” he added.

Others warned that Italy's red tape — including the Google ruling — could stifle free expression. Mr. de Martin, of the Nexa Center, said that universities and companies might not want to run the risk of opening Web forums if they would be criminally liable for their contents.

“If you bureaucratize it even a little, you eliminate thousands or millions of people who don't feel like making the effort,” he said.

from the Washington Post, 2010-Mar-25, by Ellen Nakashima and Cecilia Kang:

Network Solutions, GoDaddy cease registering Web sites in China

Two major Internet domain name registration companies have ceased registering Web sites in China in response to intrusive new government rules that require applicants to provide extensive personal data, including photographs of themselves.

GoDaddy.com, the world's largest domain name registration company, and Network Solutions, based in Herndon, objected to policies that were imposed by China in December.

The rules, Go Daddy said, are an effort by China to increase monitoring and surveillance of Web site content and could put individuals who register their sites with the firm at risk. The company also said the rules will have a "chilling effect" on new domain name registrations.

The decisions come amid a showdown between China and Google, which recently announced it will no longer censor search results on its site in the country. Analysts and human rights advocates have warned that China's insistence on censorship and control over information is becoming a serious barrier to trade.

Go Daddy announced its decision at a congressional hearing on Wednesday.

"Go Daddy and Google deserve more than praise for doing the right thing in China -- they deserve our government's support," said Rep. Christopher H. Smith (R-N.J.), who has sponsored a bill that would prevent U.S. companies from sharing personal user information with "Internet-restricting" countries.

In December, China began to enforce a new policy that required any registrant of a new .cn domain name to provide a color, head-and-shoulders photograph and other business identification, including a Chinese business registration number and physical, signed registration forms. That data was to be forwarded to the China Internet Network Information Center (CNNIC), a quasi-governmental agency. Most domain name registries require only a name, address, telephone number and e-mail address.

"We were immediately concerned about the motives behind the increased level of registrant verification being required," Christine N. Jones, general counsel of the Go Daddy Group, told the Congressional-Executive Commission on China. "The intent of the procedures appeared, to us, to be based on a desire by the Chinese authorities to exercise increased control over the subject matter of domain name registrations by Chinese nationals."

Go Daddy has been registering domain names since 2000 and has more than 40 million domain names under management.

Jones said China was the first government to retroactively seek additional verification and documentation of registrants.

Jones also said Go Daddy customers with Chinese domain names have recently been attacked more frequently than in the past. The sites targeted tend to be those "deemed not appropriate" by Beijing -- sites that contain content about the Tiananmen Square uprising or human rights, for instance.

"When our sites get shut down in China, we are never told why . . . and it's impossible to know why," Jones said.

The Chinese Embassy in Washington did not respond to a request for comment.

Network Solutions said it stopped taking new accounts in China last December, according to spokeswoman Susan Wade.

"Of course the decision affects our businesses, but it also didn't make business sense to operate under their change of procedures," she said.

Arvind Ganesan, business and human rights director at Human Rights Watch, said China's new rules are yet another example of the country tightening its censorship policies and undermining the ability of U.S. companies to operate freely.

"The underlying intent is if you're engaging in political speech, we want to know who's engaging in it and what Web site is behind it," Ganesan said. "This is a way the Chinese government can send a chilling message to people that they shouldn't speak freely online. It's forcing us companies to be both the censor and the spy on behalf of the Chinese government."

Jones said Go Daddy's decision to stop registering new domains was unrelated to Google's recent decision.

"With all due respect, this has nothing to do with Google," she said. She added that the company had been deliberating what it would do about its business in China before Google's announcement.

"We decided we didn't want to be agents of China," she said.

At Wednesday's hearing, Alan Davidson, Google's director of public policy, said governments worldwide should develop new rules to combat unfair trade barriers online and should make Internet freedom part of the criteria for receiving development aid. He noted that the number of governments that routinely censor the Internet has grown from a handful in 2002 to more than 40 today.

from the Wall Street Journal, 2010-Jan-14, by Patrick Caddell and Douglas E. Schoen:

Don't Shoot the Pollster
Attacks on Scott Rasmussen and Fox News show a disturbing attitude toward dissent.

Polling is both an art and a science, but recently it's also become a subject of political intimidation.

One shot was fired by White House Press Secretary Robert Gibbs on Dec. 8, when he dismissed Gallup's daily tracking of President Obama's job approval. It had hit a record low of 47%, and Mr. Gibbs called the results meaningless:

"If I was a heart patient and Gallup was my EKG I'd visit my doctor. If you look back I think five days ago. . . there was an 11 point spread, now there's a one point spread. . . I'm sure a six-year-old with a crayon could do something not unlike that. I don't put a lot of stake in, never have, in the EKG that is the daily Gallup trend. I don't pay a lot of attention to meaninglessness."

Polling is a science because it requires a range of sampling techniques to be used to select a sample. It is an art because constructing a sample and asking questions is something that requires skill, experience and intellectual integrity. The possibility of manipulation—or, indeed, intimidation—is great.

A recent case in point is what has happened to Scott Rasmussen, an independent pollster we both work with, who has an unchallenged record for both integrity and accuracy. Mr. Rasmussen correctly predicted the 2004 and 2008 presidential races within a percent, and accurately called the vast majority of contested Senate races in 2004 and 2006. His work has sometimes been of concern for Republicans, particularly when they were losing congressional seats in 2004 and 2006.

Most recently, Mr. Rasmussen has been the leader in chronicling the decline in the public's support for President Obama. And so he has been the target of increasingly virulent attacks from left-wing bloggers seeking to undermine his credibility, and thus muffle his findings. A Politico piece, "Low Favorables: Democrats Rip Rasmussen," reported on the attacks from blogs like the Daily Kos, Swing State Project, and Media Matters.

"Rasmussen Caught With Their Thumb on the Scale," cried the Daily Kos last summer. "Rasmussen Reports, You Decide," the blog Swing State Project headlined not long ago in a play on the Fox News motto.

"I don't think there are Republican polling firms that get as good a result as Rasmussen does," Eric Boehlert, a senior fellow with the progressive research outfit Media Matters, said in a Jan. 2 Politico article. "His data looks like it all comes out of the RNC."

Liberals have also noted that Rasmussen's daily presidential tracking polls have consistently placed Mr. Obama's approval numbers around five percentage points lower than other polling outfits throughout the year. This is because Rasmussen surveys likely voters, who are now more Republican in orientation than the overall electorate. (Gallup and other pollsters survey the entire adult population.) On other key issues like health care, Rasmussen's numbers have been echoed by everyone else.

Mr. Rasmussen, who is avowedly not part of the Beltway crowd in Washington, has been willing to take on issues like ethics and corruption in ways no other pollsters have been able to do. He was also one of the first pollsters to stress people's real fear of the growing size of government, the size of the deficit, and the concern about spending at a time when these issues were not really on Washington's radar screen.

The reaction against him has been strident and harsh. He's been called an adjunct of the Republican Party when in fact he has never worked for any political party. Nor has he consulted with any candidates seeking elective office.

The attacks on Rasmussen and Gallup follow an effort by the White House to wage war on Fox News and to brand it, as former White House Director of Communications Anita Dunn did, as "not a real news organization." The move backfired; in time, other news organizations rallied around Fox News. But the message was clear: criticize the White House at your peril.

As pollsters for two Democratic presidents who served before Barack Obama, we view this unprecedented attempt to silence the media and to attack the credibility of unpopular polling as chilling to the free exercise of democracy.

This is more than just inside baseball. As practicing political consultants, both of us have seen that the established parties try to stifle dissent among their political advisers and consultants. The parties go out of their way to try to determine in advance what questions will be asked and what answers will be obtained to reinforce existing party messages. The thing most feared is independence, which is what Mr. Rasmussen brings.

Mr. Gibbs's comments and the recent attempts by the Democratic left to muzzle Scott Rasmussen reflect a disturbing trend in our politics: a tendency to try to stifle legitimate feedback about political concerns—particularly if the feedback is negative to the incumbent administration.

Mr. Caddell served as a pollster for President Jimmy Carter. Mr. Schoen, who served as a pollster for President Bill Clinton, is the author of "The Political Fix" just out from Henry Holt.

from the Wall Street Journal, 2010-Jan-8, by Jaron Lanier:

World Wide Mush

In his new book, "You Are Not A Gadget," online pioneer Jaron Lanier explains how the Internet has gone off course; a chorus of voices makes everything flat—and scary

All too many of today's Internet buzzwords— including "Web 2.0," "Open Culture," "Free Software" and the "Long Tail"—are terms for a new kind of collectivism that has come to dominate the way many people participate in the online world. The idea of a world where everybody has a say and nobody goes unheard is deeply appealing. But what if all of the voices that are piling on end up drowning one another out?

There's no escaping collectivism in our online world. If you search about most any topic online, for instance, you will likely be directed first to Wikipedia, a collective effort. Google Wave, a new communication tool that is intended to supplant email, encourages you to blur personal boundaries by editing what someone else has said in a conversation with you, and you can watch each other as you type so nobody gets a private moment to consider a thought before posting. And if you listen to music online, there's a good chance your listening will be guided by statistical analysis of Internet crowd preferences.

Most people know me as the "father of Virtual Reality technology." In the 1980s and 1990s, I was a young computer scientist and entrepreneur working on how to apply virtual reality to things like surgical simulation. But I was also part of a circle of friends who tried to imagine how computers would fit into the peoples' lives, including how people might make a living in the future. Our dream came true, in part. It turns out that millions of people are ready to contribute instead of sitting passively on the couch watching television. On the other hand, we made a huge mistake in making those contributions unpaid, and often anonymous, because those bad decisions robbed people of dignity. I am appalled that our old fantasies have become so entrenched that it's hard to get anyone to remember that there are alternatives to a framework that isn't working.

Here's one problem with digital collectivism: We shouldn't want the whole world to take on the quality of having been designed by a committee. When you have everyone collaborate on everything, you generate a dull, average outcome in all things. You don't get innovation.

If you want to foster creativity and excellence, you have to introduce some boundaries. Teams need some privacy from one another to develop unique approaches to any kind of competition. Scientists need some time in private before publication to get their results in order. Making everything open all the time creates what I call a global mush.

There's a dominant dogma in the online culture of the moment that collectives make the best stuff, but it hasn't proven to be true. The most sophisticated, influential and lucrative examples of computer code—like the page-rank algorithms in the top search engines or Adobe's Flash— always turn out to be the results of proprietary development. Indeed, the adored iPhone came out of what many regard as the most closed, tyrannically managed software-development shop on Earth.

Actually, Silicon Valley is remarkably good at not making collectivization mistakes when our own fortunes are at stake. If you suggested that, say, Google, Apple and Microsoft should be merged so that all their engineers would be aggregated into a giant wiki-like project—well you'd be laughed out of Silicon Valley so fast you wouldn't have time to tweet about it. Same would happen if you suggested to one of the big venture-capital firms that all the start-ups they are funding should be merged into a single collective operation.

But this is exactly the kind of mistake that's happening with some of the most influential projects in our culture, and ultimately in our economy.

Digital collectivism might seem participatory and democratic, but it's painting us into a corner from which we will have to concoct an awkward escape. It is strange to me that this isn't more obvious to many of my Silicon Valley colleagues.

The U.S. made a fateful decision in the late 20th century to routinely cede manufacturing and other physical-world labors to foreign competitors so that we could focus more on lucrative, comfortable intellectual activities like design, entertainment and the creation of other types of intellectual property. That formulation still works for certain products that remain within a system of proprietary control, like Apple's iPhone.

Unfortunately, we were also making another decision at the same time: that the very idea of intellectual property impedes information flow and sharing. Over the last decade, many of us cheered as a lot of software, music and news became free, but we were shooting ourselves in the collective feet.

On the one hand we want to avoid physical work and instead benefit from intellectual property. On the other hand, we're undermining intellectual property so that information can roam around for nothing, or more precisely as bait for advertisements. That's a formula that leaves no way for our nation to earn a living in the long term.

The "open" paradigm rests on the assumption that the way to get ahead is to give away your brain's work—your music, writing, computer code and so on—and earn kudos instead of money. You are then supposedly compensated because your occasional dollop of online recognition will help you get some kind of less cerebral work that can earn money. For instance, maybe you can sell custom branded T-shirts.

We're well over a decade into this utopia of demonetized sharing and almost everyone who does the kind of work that has been collectivized online is getting poorer. There are only a tiny handful of writers or musicians who actually make a living in the new utopia, for instance. Almost everyone else is becoming more like a peasant every day.

And it's going to get worse. Before too long—in 10 years, I'd guess—cheap home robots will be able to make custom T-shirts from free designs off the Internet. When that day comes, then a T-shirt's design will be no more valuable than recorded music is today.

The T-shirt-making robot is only one example of a general principle. As technology gets better and better, more and more jobs will essentially become threatened, just like today's jobs for reporters or recording musicians.

One of the bright spots in the employment picture for the U.S. is in health-care jobs, such as those related to elder care. But the Japanese are developing health-care robots to anticipate the needs of their aging population. When those robots get good and cheap, which they probably will within a couple of decades, a lot of health-care jobs in the U.S. will either go away or become much less well-paid.

This isn't how things should be. Improving technology is supposed to create ever more comfortable and cerebral jobs for people. Some kind of intellectual-property system is the only way Americans, or people anywhere, can earn money in the long, long term, as technology gets very good.

The owners of big computer resources on the Internet, like Google, will be able to make money from the open approach for a long time, of course, by routing advertisements, but middle-class people will be increasingly asked to accept a diet of mere kudos. No one should feel insulated from this trend. Poverty has a way of trickling up. Once everyone is aggregated, what will be left to be advertised?

All too often, a youthful perspective falls prey to the fallacy of collectivism. I fell prey to it myself. In my early 20s, I lived in collective households and belonged to food co-ops, as did most of my friends. I recall these things now as harmless diversions, more of a way of extending the experience of childhood than an attempt at revolution.

Youthful fascination with collectivism is in part simply a way to address perceived "unfairness." If everyone shares, then a young person arriving on the scene fresh will not have less than an older person who has been around for a while.

This is all harmless enough, but the pattern can be manipulated in dangerous ways. I don't want our young people aggregated, even by a benevolent social-networking site. I want them to develop as fierce individuals, and to earn their living doing exactly that. When they work together, I hope they'll do so in competitive, genuinely distinct teams so that they can get honest feedback and create big-time innovations that earn royalties, instead of spending all their time on crowd-pleasing gambits to seek kudos. This is not just so that they and their children will thrive, but so that they won't become a mob, which, as history has shown us again and again, is a vulnerability of human nature.

Jaron Lanier is known as the father of virtual-reality technology and has worked on the interface between computer science and medicine, physics, and neuroscience. This essay is adapted from his book "You Are Not a Gadget," due out next week from Knopf.

from the Wall Street Journal, 2010-Jan-31:

Carlos the Brand
The Jackal has a brand to protect.

Life for terrorists is improving in the U.S., with the Detroit bomber enjoying his right to remain silent and negotiate a plea bargain, while Khalid Sheikh Mohammed and his Guantanamo mates head for a civilian trial. At least we can say America hasn't gone as far as France to accommodate enemy combatants.

On Thursday, a court outside Paris will rule on a claim lodged by one Ilich Ramírez Sánchez. Better known as Carlos the Jackal, the 60-year-old Venezuelan was the Osama bin Laden of the 1970s and 1980s. On behalf of Palestinian and various Marxist-Leninist causes, Ramírez organized and carried out a series of notable terrorist attacks. The French finally nabbed him from a Sudanese hospital in 1994 and jailed him for life for the murder of two French policemen and a Lebanese informant. Carlos the Jackal now spends his time invoking his rights under the French constitution.

In the case before the court in Nanterre, he and long-time lawyer Isabelle Coutant-Peyre, who also married him, are suing a French production company for the right to review and "correct and edit" a forthcoming made-for-TV film about him entitled "Carlos." Ms. Coutant-Peyre alleges the filmmakers are out to "demolish Carlos." Her client wants to protect the intellectual property rights to his name and "biographical image." The court has taken this case seriously enough to hear it.

A lawyer for the film company, Film en Stock, asked the Libération daily in Paris, "How could we possibly tarnish the image of Carlos when he himself claims to have killed some 2,000 people?" There's also the small matter of a right to free press and speech that should, one would assume, shield the filmmakers from a litigious terrorist.

Still, the compatriot who Venezuela's Hugo Chávez last year hailed as "a revolutionary soldier" may be on to something. Carlos has an experienced nose for the zeitgeist. How long can it be before some American lawyer tries to safeguard KSM's "biographical image"?

from the Wall Street Journal, 2010-Jan-28, by Eric Felten:

On Thin Ice: Two Russians Skate Off the Reservation
A loin-clothed homage to Aboriginal peoples backfires.

Russian figure-skaters Oksana Domnina and Maxim Shabalin, who have been favorites to win gold medals at next month's Vancouver Olympics, thought they had found an admirably multicultural theme for their ice-dancing routine—an homage to aboriginal peoples. In it, they leap and dance and spin to a hip-hoppy track of sampled didgeridoo sounds while wearing loincloths over bodysuits painted with pseudotribal designs.

They have now learned the hard way that the politics of multiculturalism are tricky: The pair were denounced last week by Australian Aboriginal activists who don't like outsiders dabbling in their traditions. Bev Manton, chairwoman of the New South Wales Aboriginal Land Council, declared the skaters had co-opted "a foreign culture, and used [it] inappropriately."

Who can argue with that? After all, there is rarely anything indisputably appropriate in figure skating, an endeavor famous for mawkish overemoting and sequined unitards. The Russians' aboriginal fantasy is hardly the first or most egregious lapse of taste on ice.

But the Aborigines' complaint goes far beyond the assertion that the skaters' routine is corny or crass. The more serious accusation here is that the Russians are infringing on the cultural property of Aborigines. "We see it as stealing Aboriginal culture," said Sol Bellear, a member of the Aboriginal Land Council. "It is yet another example of the Aboriginal people of Australia being exploited." Ms. Manton said the performance is "not acceptable to Aboriginal people" because it is "offensive."

***

James O. Young, professor of philosophy at the University of Victoria in British Columbia and author of the book "Cultural Appropriation and the Arts," doesn't see it that way. I asked him about the kerfuffle and he said that for Aborigines to take offense at such a hapless effort at cross-cultural kitsch is rather like a Parisian boulanger getting in a huff when an American tries to ask for a croissant in fractured French. That is, it's unreasonable.

The Aboriginal gripe is a variation on an argument that has nagged jazz and popular music in America for most of a century. We've been told not to celebrate the endless cross-pollination of musical cultures, not to see it as a welcome force for integration in the old melting pot, but to view it instead as theft. For example, the "blues is black man's music, and whites diminish it at best or steal it at worst," wrote jazz critic and Rolling Stone magazine editor Ralph J. Gleason in 1968. "In any case, they have no moral right to use it."

Gleason was unintentionally belittling the blues. To say that a style, an idiom, or a cultural aesthetic is the province of a race or ethnicity is to give it a status beneath that of art. Would we be elevating Beethoven's odes if we asserted that orchestral romanticism is the sole province of Teutons? When he was a young man, jazz saxophonist Phil Woods expressed to bebop trumpeter Dizzy Gillespie his worry that, as a white man emulating Charlie "Bird" Parker, he was misappropriating an idiom to which he had no claim. "You can't steal a gift," Gillespie replied. "Bird gave the world his music, and if you can hear it you can have it."

Hipster-band-of-the-moment Vampire Weekend liberally borrows from the staccato arpeggios of African pop, much as Paul Simon did with his "Graceland" album. The preppy Columbia University grads who make up the group have created something new and different out of the mash-up of cultures, a genre that, with postmodern irony, they call "Upper West Side Soweto." We can furrow our brows and harrumph that they have inappropriately co-opted a foreign idiom, or we can marvel at the endlessly jumbled global culture that mixes Locust Valley garb with township grooves.

***

T.S. Eliot endorsed the idea of artistic theft, with the caveat that "bad poets deface what they take, and good poets make it into something better, or at least something different." I don't think we need to demand that cultural interlopers make something "better" than the sources that inspire them. That would be the real insult—borrowing on the premise that one will be improving upon the original. Instead, it should be enough that a poem or a song or a dance or a play makes for something different—even if it is different in the excruciating way that the joke auditions on "American Idol" give us different takes on famous pop songs. Goodness knows the Russian Olympic skaters have done at least that much (unless there is a thriving tradition of Aboriginal ice ballet in Australia that I've somehow missed).

Aboriginal activists met earlier this week to weigh their options and decided that the Russian ice-dancing routine "while offensive to Aboriginal people, is not illegal." That's a relief—though we can expect the Russian pair to be treated as cultural criminals at the Olympics nonetheless. Which is a shame, because even as we celebrate the great multiplicity and variety of cultures in the world, there is a case to be made that we all share in them.

"My people," writes Princeton philosophy professor Kwame Anthony Appiah, "made the Great Wall of China, the Chrysler Building, the Sistine Chapel: these things were made by creatures like me, through the exercise of skill and imagination." By "my people" Mr. Appiah means that biggest and most catholic of tribes, "human beings."

from the Wall Street Journal, 2010-Jan-13, by Rebecca MacKinnon:

Google Gets On the Right Side of History
No more censored searches to please the Chinese government.

One night in the mid-1990s when I was working as a journalist in Beijing, I went out to dinner with some Chinese friends. I had just finished reading a book called "The File" by the British historian Timothy Garton Ash. It's about what happened in East Berlin after the Berlin Wall came down and everybody could see the files the Stasi had been keeping all those years. People discovered who had been ratting on whom—in some cases neighbors and co-workers, but also lovers, spouses and even children. After I described the book to my Chinese dinner companions—a hip and artsy intellectual crowd—one friend declared: "Some day the same thing will happen in China, then I'll know who my real friends are."

The table went silent.

China today is very different from Soviet-era Eastern Europe. It's unlikely that its current political system—or its system for blocking foreign Web sites known widely as the "great firewall"—will crumble like the Berlin Wall any time soon. Both are supported and enabled by the current geopolitical, commercial and investment climate in ways that Soviet-era Eastern Europe and the Iron Curtain never were.

I do believe, however, that in my lifetime the Chinese people may learn more about some of the conversations that have taken place over the past decade between Internet company executives and Chinese authorities. When that happens, they will know who sold them out and who was most eager to help the Chinese Communist Party in building a blinkered cocoon of disinformation around their lives—and in some cases deaths.

This censored environment makes it easier for the Chinese government to lie to its people, steal from them, turn a blind eye when they are poisoned with tainted foodstuffs, and cover up their children's deaths due to substandard building codes. It is a constant struggle, and sometimes literally a crime, for people to share information about such matters or to use the Internet to mobilize against corruption and malfeasance.

That is the information environment that China's business elites, many of whom have gotten rich running Internet and telecommunications companies, are responsible for helping to build and maintain. For now they are national heroes, having made great (and lucrative) efforts on behalf of China's economic growth and global competitiveness, making China a force to be reckoned with on the global stage. But if history takes some unexpected turns—and that's the one thing you can count on Chinese history doing—it won't always be on their side.

By announcing it will no longer censor its Chinese search engine and will reconsider its presence in China, Google has taken a bold step onto the right side of history.

Four years ago when Google entered the Chinese market and launched Google.cn, Chinese bloggers called it the "neutered Google." At the time, Google executives said the decision to bow to the Chinese government's censorship demands had been made after heated internal debates. They said they had weighed the positives and negatives and concluded Chinese Internet users were better off with the neutered Google than with no Google. They drew a red line under search and said they would not bring any other Google products containing users' personal information—including email and blogging—into China. They held to that line.

Over the past four years I tested Google.cn from time to time and compared its search results with the Chinese market leader, Baidu. I found that Google.cn tended to censor search results somewhat less than Baidu. This supported Google's argument that it at least gave Chinese Internet users more information than the domestic alternatives.

Google executives also pointed out that a notice appeared at the bottom of every page of censored results on Google.cn, informing users that some information was being hidden from them at the behest of Chinese authorities. In this way, the logic went, they were at least being honest with the Chinese public about the fact that Google was helping their government put blinkers on them.

The company's effort to walk a fine line between Chinese regulators and free speech critics ended up being unsustainable. Anticensorship activists still viewed its compromise as contributing to the spread of censorship around the world. On the other hand, the compromise was also unacceptable to Chinese authorities, who were unhappy that Google wasn't censoring as heavily as Baidu. Last year Google came under a series of attacks in the state-run media for failing to censor porn adequately when users—horror of horrors—typed smutty phrases into the search box.

As Google considers exactly what it will do next now that it has refused to censor, some Chinese users are expressing support and sending flowers, others are upset, and others are thumbing their noses, good riddance. Competitors are gloating. Google is in for a rough few months ahead. In the longer run, history will reveal to the Chinese people who their real friends have been.

Ms. MacKinnon is a fellow with the Open Society Institute. She is writing a book about China and the Internet.

from the Wall Street Journal, 2010-Jan-13, p.A1, by Jessica E. Vascellaro, Jason Dean and Siobhan Gorman with Andrew Browne and Ben Worthen contributing:

Google Warns of China Exit Over Hacking
Cyber Attack Targeted as Many as 34 Firms, Email of Human-Rights Activists; Investigators Probe Link to Chinese Government

Google Inc. said it may leave China after an investigation found the company had been hit with major cyber attacks it believes originated from the country -- a move that would amount to a high-profile rebuke of China by a major U.S. firm.

The attack targeted as many as 34 different companies or other entities, according to two people familiar with the investigation, which has been under way for weeks.

Investigators are probing whether the attack is linked to the Chinese government or intelligence services, one person familiar with the investigation said. The attack has piqued the interest of U.S. intelligence agencies, including the National Security Agency, this person added.

Google said it suffered a "highly sophisticated and targeted attack on our corporate infrastructure originating from China" in mid-December, which it said resulted in "the theft of intellectual property." The company said it found evidence to suggest that a primary goal of the attackers was accessing the Gmail accounts of Chinese human-rights activists.

A company spokesman declined to identify the other companies affected, saying only that it was in the process of notifying the companies and working with U.S. authorities. A spokeswoman for Adobe Systems Inc. said Tuesday that the software company experienced an attack that appeared to be related to the attacks Google described.

For Google to withdraw from China would be an extremely rare repudiation by a Western company of what is almost universally seen in business circles as one of the world's most important markets. The country has 338 million Internet users as of June, more than any other country. Even the public suggestion that it is considering such a move is likely to infuriate Chinese authorities. Google's statement could complicate matters for other tech companies sensitive to being seen as accomplices of the Chinese government.

Google said it will be talking with Beijing in coming weeks about how it might operate in China without censorship, long a thorn in the side of Western Web companies operating there. "We have decided we are no longer willing to continue censoring our results" on Google's China Web site, Google.cn, the company's chief legal officer, David Drummond, said in the post.

"We recognize that this may well mean having to shut down Google.cn, and potentially our offices in China," he wrote.

Chinese officials couldn't immediately be reached for comment. The government in the past has repeatedly defended its handling of the Internet, and has rejected accusations that China is responsible for cyber attacks against foreign entities.

Google's statement was hotly debated within the senior ranks of the company, according to two people familiar with the matter. Google Chief Executive Eric Schmidt was concerned about the potential backlash, but operating in China has been a concern of Google co-founder Sergey Brin in particular, these people said.

Google launched its Chinese-language google.cn search engine in 2006, agreeing to censor some of its results, a move that drew fire from human-rights groups and Web-industry officials who are critical of any restrictions on the Internet. Tensions between Google and the Chinese government began soon, escalating in 2009 when China reprimanded Google and accused it of having pornography on its sites. Google's video-sharing site, YouTube, has also been largely inaccessible within China since around March.

Google's move comes as it has been in negotiations with Chinese officials over various Google services in China. Last year, to placate Chinese officials, Google agreed to remove some links on its China homepage.

The company said only two Gmail accounts appeared to have been accessed. A spokesman said none of Google's services experienced significant disruptions.

"These attacks and the surveillance they have uncovered -- combined with the attempts over the past year to further limit free speech on the Web -- have led us to conclude that we should review the feasibility of our business operations in China," Mr. Drummond wrote.

If Google decides to stay, it runs the risk that its threat to withdraw will worsen its already rocky relationship with Chinese authorities, who wield ultimate power over all Internet companies doing business there and could, ultimately, force Google's departure anyway. Google's business in China goes beyond its search service -- Chinese wireless carriers, for example, have been planning to sell mobile phones using the U.S. company's Android operating system.

Human-rights advocates praised Google. The company's decision "spotlights the importance of freedom of expression and privacy online," Human Rights Watch said in a statement.

The attacks appear to have been launched from at least six Internet addresses located in Taiwan, which is a common strategy used by Chinese hackers to mask their origin, said James Mulvenon, director of the Center for Intelligence Research and Analysis at Defense Group Inc. a national-security firm.

They also hijacked the Internet address of a San Antonio-based firm, Rackspace, which is one of the largest Internet-hosting companies in the U.S. They siphoned off the stolen data from Google and other companies to the San Antonio site before sending it overseas, Mr. Mulvenon said. A Rackspace official said, "A server at Rackspace was compromised, disabled, and we actively assisted in the investigation of the cyber attack, fully cooperating with all affected parties."

The attackers used at least seven different types of attack code in their effort to identify and steal data from Google, said Rafal Rohozinski, a principal at the SecDev Group, a Canadian security consulting firm that discovered a major Chinese spying operation on the Dalai Lama last year.

The attack on Google is similar to an earlier one that affected computers belonging to the office of the Dalai Lama and many foreign embassies, people familiar with the episode say. In that incident, dubbed GhostNet by the researchers who detected it, victims were sent emails that appeared to come from someone they knew, but were really sent by a hacker. When the recipient opened an attached document, a piece of computer code installed itself on the victim's computer allowing the hacker to take control of the computer.

In a statement, Secretary of State Hillary Clinton said, "We have been briefed by Google on these allegations, which raise very serious concerns and questions. We look to the Chinese government for an explanation. The ability to operate with confidence in cyber space is critical in a modern society and economy." An administration official said there were no reports of federal systems being affected by the attack.

Google's revenue in China is relatively small, with analysts estimating only a few percentage points of Google's nearly $22 billion in 2008 revenue came from the nation. But the country's massive number of Internet users has made it strategically important for Google, as it tried to extend its dominance in search and search advertising around the globe.

Search market in China reached revenue of two billion yuan ($293 million) in the third quarter of 2009, 28% higher than a year earlier. As of that quarter, Google had 31.3% market share, compared with Baidu's 63.9%. Their competitors now all have less than 1% market share, according to Analysys International.

Google suffered another setback in September when Kai-Fu Lee, the high-profile former Microsoft Corp. executive it had hired in 2005 to lead its China operation, left for his own Chinese Internet-investment venture.

Google may go the way of other Internet companies, such as eBay Inc. and Yahoo Inc., which abandoned expansion plans in China in recent years -- although none of them in the publicly critical way that Google is suggesting. Both transferred their China businesses to local players in exchange for equity stakes.

Foreign Internet companies have all struggled in China both against tough commercial competition and also government regulation and censorship. The common assumption, however, is that no matter how onerous the limitations and challenges faced by foreign companies in China, the market is too big to walk away from.

Google would be the most high-profile Western company in recent years to draw a line under the kind of compromises it is prepared to make. A number of foreign companies exited China after the Chinese army crushed protesters around Tiananmen Square in 1989. But they mostly came back in the following years.

from the Guardian of London, 2010-Jan-24, by Tania Branigan in Beijing and agencies:

China accuses US of online warfare in Iran
Iran election unrest an example of US 'naked political scheming' behind free speech facade, says Communist party editorial

The United States used "online warfare" to stir up unrest in Iran after last year's elections, the Chinese Communist party newspaper claimed today, hitting back at Hillary Clinton's speech last week about internet freedom.

An editorial in the People's Daily accused the US of launching a "hacker brigade" and said it had used social media such as Twitter to spread rumours and create trouble.

"Behind what America calls free speech is naked political scheming. How did the unrest after the Iranian election come about?" said the editorial, signed by Wang Xiaoyang. "It was because online warfare launched by America, via YouTube video and Twitter microblogging, spread rumours, created splits, stirred up and sowed discord between the followers of conservative reformist factions."

Washington said at the time of the unrest that it had asked Twitter, which was embraced by Iranian anti-government protesters, to remain open. Several social media sites, including YouTube, Facebook and Twitter, have been blocked in China in the last year.

The editorial asked rhetorically whether obscenity or activities promoting terrorism would be allowed on the net in the US. "We're afraid that in the eyes of American politicians, only information controlled by America is free information, only news acknowledged by America is free news, only speech approved by America is free speech, and only information flow that suits American interests is free information flow," it added.

It attacked the decision to cut off of Microsoft's instant messaging services to nations covered by US sanctions, including Cuba, Iran, Syria, Sudan and North Korea, as violating America's stated desire for free information flow. Washington later said that such services fostered democracy and encouraged their restoration.

China initially gave a low-key response to Google's announcement that it was no longer willing to censor google.cn. The internet giant said it had reached its decision following a Chinese-originated cyber attack targeting the email accounts of human rights activists, and in light of increasing online censorship.

Clinton's direct challenge to China, in a speech that had echoes of the cold war with its references to the Berlin wall and an "information curtain", led Beijing to warn that US criticism could damage bilateral relations. Clinton called on China to hold a full and open investigation into the December attack on Google.

In an interview carried by several Chinese newspapers today, Zhou Yonglin, deputy operations director of the national computer network emergency response technical team, said: "Everyone with technical knowledge of computers knows that just because a hacker used an IP address in China, the attack was not necessarily launched by a Chinese hacker."

US diplomats sought to reach out to the Chinese public by briefing bloggers in China on Friday. They held a similar meeting during Barack Obama's visit in November.

from Reuters, 2010-Jan-26, by Ben Blanchard with additional reporting by Chris Buckley and editing by Jeremy Laurence:

Chinese media scorn U.S. for "politicizing" Google affair

BEIJING - Chinese state media stepped up their war of words with the United States over Internet control on Tuesday, with a top newspaper claiming a U.S. conspiracy and saying China can live without Google.

Two weeks ago the world's biggest search engine provider, Google Inc., threatened to shut its Chinese Google.cn portal and to pull back from China, citing problems of censorship and sophisticated hacking from within the country.

The Obama administration has backed Google's criticisms, and on Thursday Secretary of State Hillary Clinton urged China to drop Internet censorship and investigate the claims of hacking, which some experts have said could have been organized by Beijing.

After first fending off the criticisms from Google and Washington with tight-lipped restraint, Chinese officials and state-run media have launched a torrent of scorn that has the hallmarks of a concerted counter-campaign.

The country's top newspaper warned that the Internet row was hurting broader bilateral relations -- which have also been strained by trade disputes, U.S. arms sales to Taiwan, and the possibility that President Barack Obama will meet the Dalai Lama, who Beijing calls a separatist.

"These statements and actions disregard reality and harm China's national image, upsetting the healthy and stable development of Sino-U.S. ties," the People's Daily, the ruling Communist Party's chief mouthpiece, said in a commentary on the Internet dispute.

"It is not difficult to see the shadow of the U.S. government behind the politicization of the Google affair."

Washington had exploited Google's claims "in an effort to restrict China's right to protect its national security and interests on the Internet."

Google has said it wants talks with the Chinese government about solving its complaints.

But the People's Daily added a note of uncertainty about Google's hopes. "Perhaps Google has already realized that China can do without Google, but without China, Google does not have a future," it said.

ORCHESTRATED COUNTER-ATTACK

The outpouring of criticism, echoed in other prominent Chinese newspapers, suggests Clinton's speech riled Beijing's wary leaders, who have long said the West is bent on undermining Communist Party power.

China's propaganda authorities regularly unleash the domestic press, which all comes under state control, to defend policies at tense times, especially when Beijing comes under pressure from abroad.

"The media criticism is certainly orchestrated to send a message from the Chinese government, but it's also trying to shift the target from Google to the U.S. government," said Li Datong, a former senior editor with the China Youth Daily who was shunted aside after complaining of censorship.

"That doesn't mean there's no room for compromise, but in public the Chinese government never likes being seen as going soft," Li told Reuters.

China defends its Internet controls as necessary to protect minors, though many other sensitive issues are also prevented from appearing, such as references to 1989's bloody crackdown on pro-democracy demonstrations around Tiananmen Square.

China has blocked sites like Facebook, Twitter and Google's YouTube following ethnic riots in restive Xinjiang and Tibet.

Beijing has denied the hacking accusations, saying instead that it is a major victim of hackers.

from USA Today, 2009-Oct-19, by Jonathan Turley:

Just say no to blasphemy laws

Perhaps in an effort to rehabilitate the United States' image in the Muslim world, the Obama administration has joined a U.N. effort to restrict religious speech. This country should never sacrifice freedom of expression on the altar of religion.

Around the world, free speech is being sacrificed on the altar of religion. Whether defined as hate speech, discrimination or simple blasphemy, governments are declaring unlimited free speech as the enemy of freedom of religion. This growing movement has reached the United Nations, where religiously conservative countries received a boost in their campaign to pass an international blasphemy law. It came from the most unlikely of places: the United States.

While attracting surprisingly little attention, the Obama administration supported the effort of largely Muslim nations in the U.N. Human Rights Council to recognize exceptions to free speech for any "negative racial and religious stereotyping." The exception was made as part of a resolution supporting free speech that passed this month, but it is the exception, not the rule that worries civil libertarians. Though the resolution was passed unanimously, European and developing countries made it clear that they remain at odds on the issue of protecting religions from criticism. It is viewed as a transparent bid to appeal to the "Muslim street" and our Arab allies, with the administration seeking greater coexistence through the curtailment of objectionable speech. Though it has no direct enforcement (and is weaker than earlier versions), it is still viewed as a victory for those who sought to juxtapose and balance the rights of speech and religion.

A 'misused' freedom?

In the resolution, the administration aligned itself with Egypt, which has long been criticized for prosecuting artists, activists and journalists for insulting Islam. For example, Egypt recently banned a journal that published respected poet Helmi Salem merely because one of his poems compared God to a villager who feeds ducks and milks cows. The Egyptian ambassador to the U.N., Hisham Badr, wasted no time in heralding the new consensus with the U.S. that "freedom of expression …has been sometimes misused" and showing that the "true nature of this right" must yield government limitations. …

His U.S. counterpart, Douglas Griffiths, heralded "this joint project with Egypt" and supported the resolution to achieve "tolerance and the dignity of all human beings." While not expressly endorsing blasphemy prosecutions, the administration departed from other Western allies in supporting efforts to balance free speech against the protecting of religious groups.

Thinly disguised blasphemy laws are often defended as necessary to protect the ideals of tolerance and pluralism. They ignore the fact that the laws achieve tolerance through the ultimate act of intolerance: criminalizing the ability of some individuals to denounce sacred or sensitive values. We do not need free speech to protect popular thoughts or popular people. It is designed to protect those who challenge the majority and its institutions. Criticism of religion is the very measure of the guarantee of free speech — the literal sacred institution of society.

Blasphemy prosecutions in the West appear to have increased after the riots by Muslims following the publication of cartoons disrespecting prophet Mohammed in Denmark in 2005. Rioters killed Christians, burned churches and called for the execution of the cartoonists. While Western countries publicly defended free speech, some quietly moved to deter those who'd cause further controversies through unpopular speech.

In Britain, it is a crime to "abuse" or "threaten" a religion under the Racial and Religious Hatred Act 2006. A 15-year-old boy was charged last year for holding up a sign outside a Scientology building declaring, "Scientology is not a religion, it is a dangerous cult. "In France, famed actress Brigitte Bardot was convicted for saying in 2006 that Muslims were ruining France in a letter to then-Interior Minister (and now President) Nicolas Sarkozy. This year, Ireland joined this self-destructive trend with a blasphemy law that calls for the prosecution of anyone who writes or utters views deemed "grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion; and he or she intends, by the publication of the matter concerned, to cause such outrage."

'Blasphemy' incidents

Consider just a few such Western "blasphemy" cases in the past two years:

• In Holland, Dutch prosecutors arrested cartoonist Gregorius Nekschot for insulting Christians and Muslims with cartoons, including one that caricatured a Christian fundamentalist and a Muslim fundamentalist as zombies who want to marry and attend gay rallies.

• In Canada, the Alberta human rights commission punished the Rev. Stephen Boission and the Concerned Christian Coalition for anti-gay speech, not only awarding damages but also censuring future speech that the commission deems inappropriate.

• In Italy, comedian Sabina Guzzanti was put under criminal investigation for joking at a rally that "in 20 years, the pope will be where he ought to be — in hell, tormented by great big poofter (gay) devils, and very active ones."

• In London, an aide to British Foreign Secretary David Miliband was arrested for "inciting religious hatred" at his gym by shouting obscenities about Jews while watching news reports of Israel's bombardment of Gaza.Also, Dutch politician Geert Wilders was barred from entering Britain as a "threat to public policy, public security or public health" because he made a movie describing the Quran as a "fascist" book and Islam as a violent religion.

• In Poland, Catholic magazine Gosc Niedzielny was fined $11,000 for inciting "contempt, hostility and malice"by comparing the abortion of a woman to the medical experiments at Auschwitz.

The "blasphemy" cases include the prosecution of writers for calling Mohammed a "pedophile" because of his marriage to 6-year-old Aisha (which was consummated when she was 9). A far-right legislator in Austria, a publisher in India and a city councilman in Finland have been prosecuted for repeating this view of the historical record.

In the flipside of the cartoon controversy, Dutch prosecutors this year have brought charges against the Arab European League for a cartoon questioning the Holocaust.

What's next?

Private companies and institutions are following suit in what could be seen as responding to the Egyptian-U.S. call for greater "responsibility" in controlling speech. For example, in an act of unprecedented cowardice and self-censorship, Yale University Press published The Cartoons That Shook the World, a book by Jytte Klausen on the original Mohammed cartoons. Yale, however, (over Klausen's objections) cut the actual pictures of the cartoons. It was akin to publishing a book on the Sistine Chapel while barring any images of the paintings.

The public and private curtailment on religious criticism threatens religious and secular speakers alike. However, the fear is that, when speech becomes sacrilegious, only the religious will have true free speech. It is a danger that has become all the more real after the decision of the Obama administration to join in the effort to craft a new faith-based speech standard. It is now up to Congress and the public to be heard before the world leaves free speech with little more than a hope and a prayer.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY's board of contributors.

from CNN, 2010-Jan-2:

Irish atheists use Bjork, Mark Twain to challenge blasphemy law

An Irish atheist group has published a series of quotations on religion in an attempt to challenge a blasphemy law that went into effect on New Year's Day.

The 25 "blasphemous" quotations include the words of Jesus, Mohammed, Mark Twain, Salman Rushdie and Bjork.

Atheist Ireland published the list on its Web site Friday. It says it aims to challenge the law, which makes blasphemy a crime punishable by a €25,000-($35,800) fine.

"Despite these quotes being abusive and insulting in relation to matters held sacred by various religions, we unreservedly support the right of these people to have published or uttered them," the group said on the site.

"We unreservedly support the right of any Irish citizen to make comparable statements about matters held sacred by any religion without fear of being criminalized, and without having to prove to a court that a reasonable person would find any particular value in the statement."

Lawmakers in staunchly Catholic Ireland passed the law in July, but it came into force January 1.

A person breaks the law by saying or publishing anything "grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion."

Those found guilty of breaking the blasphemy law may try to defend themselves by proving that a reasonable person would find literary, artistic, political, scientific or academic value in what they said or published, the law says.

Atheist Ireland called the law "silly and dangerous," because it provides an incentive for religious outrage.

"We believe in the golden rule: that we have a right to be treated justly, and that we have a responsibility to treat other people justly," the group said.

"Blasphemy laws are unjust: They silence people in order to protect ideas. In a civilized society, people have a right to to express and to hear ideas about religion even if other people find those ideas to be outrageous."

The group urged the Irish government to repeal the law. It also asked lawmakers for a referendum on removing all references to God from the Irish constitution.

from the Wall Street Journal, 2009-Dec-20, by Rachel Ehrenfeld:

The British Threat to American Free Speech
The U.S. Congress is considering legislation to protect American writers from the threat of suppressive libel lawsuits in the U.K.

The recent movement to change British libel laws to allow for greater freedom of expression has its origins in New York City and New York State.

I am a New York-based scholar specializing in research on terror financing and economic warfare. In my book, "Funding Evil: How Terrorism is Financed—and How To Stop It," I alleged that Saudi billionaire Khalid bin Mahfouz funded al Qaeda, Hamas and other terrorists organizations through his charitable fronts.

In 2005, Mr. Mahfouz sued me for libel in London, where my book had never been published or marketed. He chose London due to its antiquated libel laws, which are plaintiff-friendly. As recently noted by New York Times correspondent Sara Lyall, London is known as the "Libel Mecca" of the world, and Mr. Mahfouz was the most notorious abuser of the British system. A one-man wrecking crew of Americans' free speech rights, Mr. Mahfouz exploited British libel laws and courts, threatening or suing more than 40 writers and publishers, including many Americans. These cases were never tried on the merits. Mr. Mahfouz's litigiousness and deep pockets helped to silence and intimidate Americans and others who tried to expose his terrorist connections.

Except for me.

I refused to acknowledge the jurisdiction of the British courts, asserting my rights as a U.S. citizen. Unimpressed, the British judge rendered a default judgment in favor of Mr. Mahfouz. I was ordered to pay the Saudi more than $225,000, publish apologies in major international newspapers, and destroy all copies of my book internationally.

I sued in New York to prevent enforcement of the British judgment in the United States, petitioning the court to declare that the foreign judgment violated my First Amendment rights and was therefore unenforceable.

When the New York courts ruled that they could not assert jurisdiction over Mr. Mahfouz, New York legislators, led by Assemblyman Rory Lancman (a Democrat) and Dean Skelos (a Republican), introduced the Libel Terrorism Protection Act (aka "Rachel's Law"). The law, passed in April 2008, protects New York-based publishers and writers from the enforcement of foreign libel judgments obtained in jurisdictions lacking First Amendment-level protections for freedom of expression. Since then, California, Florida and Illinois have passed similar laws.

But these laws provide only patchwork protection, leaving U.S. writers in 46 other states vulnerable to repressive foreign libel laws. Even the recent movement to change British libel laws will not remove the Sword of Damocles dangling over American academicians, reporters, producers, scientists, and everyone who publishes in print and on the Internet. The threat emanates not only from Britain, but from many other countries as well. It extends to an infinite number of issues, including national security, the travel industry, and science and medicine.

Two recent cases demonstrate the urgent need for the enactment of national protection against suppressive foreign libel suits.

Joseph Sharkey, a New Jersey-based freelance travel journalist, is being sued in Brazil for "insulting the dignity" of the nation in the aftermath of a lethal plane crash that he and few others survived. Mr. Sharkey, who criticized Brazil's incompetent air control on his blog, was sued for defamation, and the Brazilian government is moving to criminalize his case.

In Toronto, Canada, Pennsylvania-based writer Paul L. Williams is being sued for libel because he revealed that al Qaeda members who attended the McMaster's College of Engineering in Hamilton, Ontario, apparently left the school in 2004 with 180 pounds of nuclear waste. Those al Qaeda members have been designated as terrorists by the United States, and each has a $5 million bounty on his head. Yet McMaster's University is suing Mr. Williams for libel. His trial is scheduled for April.

Messrs. Sharkey and Williams and all Americans can be protected from such frivolous foreign libel suits by the Free Speech Protection Act 2009, now pending in Congress. The bill (S. 449), proposed by Senators Arlen Specter and Joseph Lieberman, and co-sponsored by Charles Schumer and Ron Wyden, stems from New York's Rachel's Law, and has sharper teeth. It prevents the enforcement of foreign libel judgments, providing for legal expenses and—possibly—for damages.

As Mr. Sharkey's and Mr. Williams' cases show, The Free Speech Protection Act is urgently needed. Since the bill enjoys wide bipartisan support and requires no budgetary allocations, there is no reason for delay.

Now that the British are considering reforming their libel laws to include protection similar to American laws, the U.S. should continue to lead the world in the protection of freedom of expression.

Ms. Ehrenfeld is the director of the American Center for Democracy and the Economic Warfare Institute and the author of several books on terror financing.

from the Becket Fund for Religious Liberty via the Wall Street Journal, 2009-Dec-11, by Luke Goodrich:

Europe's Religion Delusion
According to the European Court of Human Rights, it is fine for government schools to expel students for wearing religiously mandated clothing.

Three children walk into a European state school—a Muslim, a Sikh, and an atheist. The Muslim and the Sikh are expelled because they wear religious clothing: a headscarf for the Muslim girl, and a turban for the Sikh boy. The atheist is welcomed into the school, but feels uncomfortable because her classroom has a crucifix on the wall. Whose religious freedom has been violated?

If you said the Muslim and the Sikh, you are wrong—at least according to the European Court of Human Rights. The Court recently shocked Europe by striking down an Italian law that put a crucifix on the wall of every state classroom. (Lautsi v. Italy) According to the Court, the presence of a crucifix interfered with students' right to choose their own religion (or nonreligion).

Just four months ago, however, the same Court upheld a French law that forbids children from wearing any religious symbols in French government schools. (J. Singh v. France) Under that law, 14-year-old Jasvir Singh, a devout Sikh, was expelled from school for wearing a keski—a small, cloth under-turban similar to the Jewish yarmulke. He was forced to complete his schooling at a more tolerant Catholic school.

Similarly, just a few years ago, the Court upheld a Turkish university's ban on wearing the Islamic headscarf. (Şahin v. Turkey) Under the ban, Leyla Şahin, a devout Turkish Muslim, was prohibited from taking her exams or enrolling in additional classes; she was forced to move to Austria to finish her medical studies.

In short, according to the European Court of Human Rights—which, by international treaty, has binding authority on human rights issues over all 47 countries in the Council of Europe—it is fine for government schools to expel students for wearing religiously mandated clothing; but if the school instead welcomes all children while displaying a crucifix on the wall, it violates the freedom of religion and belief.

The inconsistency of these decisions is fairly obvious. The more interesting question is, What drives the Court's inconsistency?

The common theme in these cases is that the Court views religious expression as a threat to a free, democratic society. In the Turkish Muslim case, the Court justified the headscarf ban on the ground that it was necessary to protect the public order and the freedom of others. Specifically, allowing a student to wear a headscarf would threaten Turkey's commitment to secularism, make other students uncomfortable, and undermine the principle of gender equality. The same arguments (minus gender equality) justified the French ban on the Sikh keski.

Similarly, in the Italian crucifix case, the Court rejected the notion, advanced by Italy, that the crucifix was a symbol of Italian history, identity, and culture and thus furthered the principles of equality, liberty, and tolerance. Rather, in the Court's view, the presence of a crucifix in a state classroom would be "disturbing" to atheists and religious minorities.

In short, the Court views religious expression not primarily as a social good, but as a threat to democratic society—a source of division, oppression, and conflict. States are fully justified in pursuing an aggressive program of secularism because secularism is, in the Court's words, "the guarantor of democratic values," "the meeting point of liberty and equality," and a bulwark against "external pressure from extremist movements." Similarly, any attempts by the government (such as Italy) to acknowledge the value of religion—as a fundamental aspect of human history, identity, and culture, and a force for equality, liberty, and tolerance—are inherently suspect.

The view of religion as a threat is, of course, common. "New atheists," such as Richard Dawkins, are one manifestation of that view; he dubs the Catholic Church a "disgusting institution," one of the "greatest force[s] for evil in the world." But new atheists are not the only ones. Others cite a history of religious wars, Muslim oppression of women, or Christian skepticism of science as proving the dangers of religion. Backwards, superstitious, and bigoted, a threat to science and progress: religion is a divisive, intolerant force that governments should tame.

There are two possible responses to this view. One is to attack the premise, arguing that, no, religion really is a force for social good. Religion motivated 19th century abolitionists; religion gave us Mother Teresa; religion permeates the Louvre.

But might there be reasons to protect religious freedom even assuming religion is harmful? I offer three. First, a practical one: suppressing religion may exacerbate the very problems it is designed to solve. History shows that religion does not disappear when governments try to suppress it. It goes underground, sometimes erupting more violently than if it were not suppressed.

Second, empowering governments to deem religion harmful, and therefore suppress it, opens the door to tyranny. Freedom of religion and freedom of expression are inextricably linked. If the government can deem religion harmful and suppress it in the name of public order, it can do the same to other ideas. It is no coincidence that many of the 20th century's most tyrannical governments—Stalin's Russia, Mao's China, Pol Pot's Cambodia—made suppression of religion a centerpiece of their administration.

Finally, suppressing religion—even when done in the name of freedom and equality—strikes at the heart of human dignity, which is the foundation of all human rights. Every human being is born with a "religious" impulse—the urge to seek truth, to embrace the truth as one finds it, and to order one's life accordingly. As the Universal Declaration of Human Rights says, "All human beings are born free" and are "endowed with reason and conscience." Absent a serious threat of violence or imminent harm, suppressing religion interferes with people's ability to be fully human, to seek and embrace the truth as they understand it.

A serious commitment to human rights requires governments to respect the religious impulse—even if much of society thinks religious beliefs are wrong, silly, or even harmful. If the European Court of Human Rights cannot get past its fear of religion, its jurisprudence will only become more incoherent, and all human rights more fragile.

Mr. Goodrich is the Deputy National Litigation Director for The Becket Fund for Religious Liberty. The Becket Fund has represented Anglicans, Agnostics, Buddhists, Christians, Hindus, Jews, Muslims, Sikhs, and Zoroastrians, among others, in lawsuits in the United States and around the world.

from the Telegraph of London, 2010-Jan-6:

France 'to criminalise shouting at your wife'
Married couples could be arrested and charged for insulting each other under a new law in France banning 'psychological violence'.

The proposed legislation would punish partners who 'overstep the mark' during verbal spats in the home.

The law would apply to husbands and wives, as well as cohabiting couples.

It is expected to cover every kind of slur from repeated rude remarks about a partner's appearance, false allegations of infidelity and threats of physical violence.

Police are being urged to issue a caution in the first instance of a reported crime, but repeat offenders could face a fine, electronic tagging or jail.

The law, being put forward by the prime minister, Francois Fillon, is aimed at protecting women who are the main victims of abuse in the home.

But men would also have the right to report their wives for verbal abuse.

Mr Fillon said: "It's an important move forward as the creation of this offence will let us tackle the most insidious situations, the ones that leave no physical scars but which still injure the victims inside."

But some experts have called the law a gimmick that will be impossible to enforce, and that the government should not be interfere in non-violent domestic squabbles.

Anne Giraud, a psychologist, said: "Squabbling couples will allege all kinds of things about each other, but they won't necessarily be true.

"The police are likely to be called out more and more when this law comes into force this year, but often it will be a case of one person's word against the other.

"Psychological violence is a very serious matter, but punishing it through the courts is a very different matter altogether."

Pierre Bonnet, a sociologist, added: "Next they will be making rudeness a crime, and the police and courts will be overrun with work."

In 2008, 157 French women and seven French men were killed by their spouses or partners, with hundreds more injured in outbursts of domestic violence. Mr Fillon said the new law had the support of the majority of the government and could come into force within six months.

from the Jerusalem Post, 2009-Dec-4, by Matthew Wagner and Herb Keinon:

Jews back Muslims on minaret ban

Citing religious discrimination, a diverse coalition of Jewish organizations is objecting to Switzerland's ban of minarets on local mosques.

Swiss voters this week approved by a strong majority a referendum outlawing the construction of minarets. The measure, pushed by the right-wing Swiss People's Party (SVP), was supported by 57 percent of the population.

However, Jewish organizations, realizing that a crackdown on Islam could have repercussions for Jews as well, have come to the defense of Muslim worshipers, arguing that the Swiss's move was unjustifiable.

Rabbi Pinchas Dunner, executive director of the Conference of European Rabbis, an Orthodox organization, said "a war on religious freedom cannot defeat Islamic extremists. The best weapon against radical Islam is support for moderate elements in the Muslim community and promoting interfaith dialogue."

In contrast, the Anti-Defamation League tied the move to religious discrimination against Jews.

"This is not the first time a Swiss popular vote has been used to promote religious intolerance," said the ADL in a press release. "A century ago, a Swiss referendum banned Jewish ritual slaughter, in an attempt to drive out its Jewish population."

Noting that the "Swiss government opposed the initiative during the campaign and underscored its commitment to religious freedom in a statement after the vote," the ADL urged Swiss leaders to "be vigilant" in their "defense of religious freedom, even though the SVP is the largest party in the Swiss Parliament and has two of the seven government ministries."

The American Jewish Committee's David Harris echoed these statements. "The referendum result amounts to an attack on the fundamental values of mutual respect," he said.

"While there are certainly understandable concerns in Europe over Islamist extremism, these cannot be legitimately addressed through a blanket assault on Muslim communities and their religious symbols," he added.

Meanwhile, it appeared that Italy might hold an anti-minaret referendum of its own.

Roberto Caldeoli, leader of Italy's right-wing Northern League party, said, "Respect for other religions is important, but we must put the brakes on Muslim propaganda, or else we will end up with an Islamic political party."

French Ambassador Christophe Bigot told The Jerusalem Post that "Muslims, like Catholics, like Jews, should be allowed to worship the way they wish. So why limit construction of mosques?

"What is important in Europe is to work for moderate Islam, for an Islam that is based on education, openness and freedom. The decision of the Swiss state will be to limit the activities of the worshipers.

"I don't think this is very helpful. This promotes the idea that we have a problem with Muslims. We don't have problem with Muslims. We have problem with Islamists, and Islamists and Muslims are two radical differences. And this kind of decision blurs the lines."

Asked if France's ban on the burka was not the same, Bigot answered, "A minaret is part of the mosque, and the Muslims go to the mosque if they are religious. A very small percentage of women wear the burka. And here we are talking about a very, very isolated minority among Muslims."

Asked if the burka ban was an infringement of religious freedom, Bigot replied that "religious freedom has to be combined with the duties of every citizen, and among the duties of every citizen - this is the French perception - there is kind of a minimum agreement of shared values, and among them is that every woman has the same rights as every man.

"And, as we know, the burka most times is imposed on women by men. So just from this perspective we don't think burka is appropriate. This is not a free act, it is an imposed situation placed on them."

Asked if the minaret ban could spread to other European countries, Bigot said that "the issue is different in France. The discussion we have is how do you finance the construction of mosques, and how do you create a national Islam.

"How much are we able to curb the influence of foreign countries on Islam in France. This we think is a valid debate, because we want a French Islam; we don't want an Islam that is importing values form parts of the world completely disconnected from European values."

Hegumen Filaret (Bulekov), a Moscow Patriarchate representative at the Council of Europe, voiced support for Switzerland's ban.

"Accusing Switzerland that it is somehow discriminating against the Islamic minority would be at least lopsided," Filaret told Interfax new service.

"The issue of minarets is not an issue of religious freedom, but it is an issue of political presence of people of a certain faith and ethnic background in a country. Taking into account a rapid rate of Islamization, visible signs of Muslims' presence would have, in particular, a political tint," he said.

from the Jewish Telegraphic Agency, 2010-Jun-1:

New Zealand Bans Kosher Slaughter

Sydney, Australia — New Zealand has banned shechita, the kosher slaughter of animals.

The country's new animal welfare code, which took effect last Friday, mandates that all animals for commercial consumption be stunned prior to slaughter to ensure that they are treated “humanely and in accordance with good practice and scientific knowledge.”

The regulation has shocked the Jewish community.

“This decision by the New Zealand government, one which has a Jewish prime minister, is outrageous,” said Rabbi Moshe Gutnick, acting president of the Organization of Rabbis of Australasia. “We will be doing everything possible to get this decision reversed.”

Gutnick, who travels frequently to New Zealand to oversee shechita, added that “One of the last countries I would have expected to bring in this blatantly discriminatory action would have been New Zealand.”

David Zwartz, the chairman of the Wellington Jewish Council, agreed.

“I am sure there will objections made that this action is an infringement of the right of Jews to observe their religion,” he said.

Agriculture Minister David Carter rejected a recommendation that shechita be exempt from the new code.

The National Animal Welfare Advisory Committee did recommend a dispensation for kosher slaughter in 2001, but the new code does not allow any exemptions.

Among other countries that have banned shechita are Iceland, Norway and Sweden.

from the Telegraph of London, 2009-Nov-29, by Sanjeev Bhaskar:

What did 'Life of Brian' ever do for us?

Monty Python's 1979 film, ‘Life of Brian’, is rightly considered a comedy classic. But, thirty years on, it wouldn’t be made today, argues Sanjeev Bhaskar.

It is 30 years since Monty Python gave us Life of Brian. For those few who are unaware of it (perhaps too young, or recently emerged from a coma), this is the story of an ordinary chap called Brian Cohen who is constantly mistaken for being the long-awaited Messiah. His misfortune is that he is born at the same time as – and in the next stable to – Jesus Christ.

Although the Pythons intended the film to be a satire on blind faith and organised religion, they could not have imagined the extent of the furore it would cause on its release. A campaign condemning the film on the grounds of blasphemy – led by Mary Whitehouse and the Christian values organisation, The Festival of Light – resulted in the film being banned in parts of Britain and the whole of Ireland and Norway. In the US, meanwhile, protesters gathered outside cinemas.

However, 30 years on, that same film is regularly touted as the funniest British comedy of all time, and is now quoted by everyone from politicians (Tony Blair in his 2004 Labour party conference speech referenced the “What have the Romans ever done for us?” scene) to the bishop who told me he is always reciting lines from the film to his friends.

I first tried to watch the film on a pirated VHS at a friend’s house in late 1979; it turned out to be quite a bizarre experience. The picture and sound quality were terrible, and the diabetic friend had a sudden drop in blood sugar and kicked us all out after about 20 minutes. But I’d seen enough to know that I wanted to see the rest. So I borrowed a copy from someone else, and became hooked. I remain utterly hooked to this day.

The origin of Life of Brian was typically Python. After the success of the film Monty Python and the Holy Grail, the group were inundated by questions about their next project. On a promotional trip to Paris, Eric Idle and Terry Gilliam got legless, and Idle said the title for their next film should be “Jesus Christ – Lust for Glory”. This tickled the collective Python funny bone and they started looking into a potential comedy about Christ.

“I was originally against doing a biblical film because I thought the costumes would be so boring,” says Terry Jones. But the group recognised the kernel of something interesting and started researching the subject. However, as Jones points out, they all realised that “Christ was a very good bloke, saying a lot of very good things that we all agreed with. Humour wasn’t in Christ at all.”

The team flew to Barbados for a working holiday. They kept office hours, enjoyed the sun and entertained guests including Keith Moon, Mick Jagger and, er, Des O’Connor, who popped round to play charades. After two weeks, they had a draft screenplay.

Mindful of the potentially incendiary content, they sent the script to a canon at St George’s Chapel at Windsor Castle. He agreed that the script was not blasphemous and said that it was “extracting the maximum comedy out of false religion and religious illusions”. He even suggested adding the now-celebrated scene in which someone is stoned to death for being blasphemous.

EMI was to finance the film, but days before production was due to start, the CEO, Lord Delfont, finally read the script and got cold feet. The script was then rejected by every major movie studio before Idle and producer John Goldstone turned to former Beatle George Harrison, who quickly secured the required $4 million.

With a solid script and the parts cast (Graham Chapman took the title role, after the others talked Cleese out of playing it), production finally began in Tunisia, with Jones as director. It was, by all accounts, a happy shoot, although there were classic Pythonesque moments. Jones recalls directing a scene while dressed as a hermit when Michael Palin said: “Do you realise that you’re stark naked?” Indeed, all Jones had to cover his modesty was a long beard.

It was decided that the controversial final scene in which Brian is crucified should end with a song, for which Idle wrote the now classic Always Look on the Bright Side of Life.

But was the scene fun to shoot? Idle laughs: “Being Python, there were about 30 people being crucified but only three ladders. So, if anyone wanted to relieve himself between takes, you got, ‘Over here quickly, please – I’ve got to get down!’”

The film premiered in America in August 1979 and immediately caused a brouhaha. The Rabbinical Alliance declared the film “foul, disgusting and blasphemous”. The Lutheran Council described it as “profane parody”. Not to be outdone, the Catholic Film Monitoring Office made it a sin even to see the film. Audiences, however, loved it, making Brian the most successful British movie in North America that year.

To counter the mounting protests in Britain, an ingenious advertising campaign was launched featuring the mothers of John Cleese and Terry Gilliam. Muriel Cleese said that if the film didn’t do well, and as her son was on a percentage, she may very well be evicted from her nice retirement home – and that the move might kill her. She won an award for the ad.

Mary Whitehouse failed to prove that the film was blasphemous, particularly since Christ and Brian are distinctly shown as different people. Nevertheless, a number of local councils banned it – including some that didn’t even have a cinema. The result was coach parties being organised in places such as Cornwall (where it was banned) to cinemas in Exeter (where it wasn’t). The Swedish marketed the film as “so funny it was banned in Norway”.

Time can be rather harsh on comedies, but Life of Brian holds up very well after 30 years, and still has the power to shock. However, current tastes and sensitivities make it highly unlikely that a comedy group would even attempt making a film like Brian today.

That said, the film’s view of blind faith seems as apposite as ever, and the closing song has come to represent a sort of British resilience – laughing in the face of adversity. It has been appropriated by football fans, chosen as the final song at funerals, and, movingly, during the Falklands War, the sailors on the damaged HMS Sheffield sang it while awaiting rescue. Like many others, I chose it as one of my Desert Island Discs.

One of my favourite off-screen anecdotes is related by Eric Idle about the cameo appearance by Spike Milligan, who happened to be holidaying in the area where Brian was being shot. After improvising his lines, they realised that Spike had disappeared – still in costume. Much later, on the way back to the hotel, they spotted Spike, who had been pulled over by the police. One of the actors leapt from the bus to exclaim: “It’s all right – he’s with us.” The only problem was the actor was still dressed as a centurion.

* Sanjeev Bhaskar presents He’s Not the Messiah, He’s a Very Naughty Boy on Radio 2 at 10.30pm on Tuesday

from the Associated Press, via the Boston Herald, 2009-Nov-9:

NH guarantees part of loan to Claremont newspaper

CLAREMONT, N.H. — The state of New Hampshire is guaranteeing part of a loan to the new owner of the Claremont Eagle Times newspaper.

Last Wednesday New Hampshire's Executive Council approved without debate the "working capital loan guarantee," which will be administered by the state's Business Finance Authority.

The Valley News of Lebanon says the authority and the state would be liable for $187,500 of a $250,000 loan from the Connecticut River Bank to the paper's owner, Eagle Printing.

The Claremont-based newspaper ceased publishing on July 10, putting 95 people out of work. In September it was bought by Sample News Group of Pennsylvania, which rehired about 25 people.

The new Eagle Times resumed publishing on Oct. 12.

___

Information from: Lebanon Valley News, http://www.vnews.com

from the Wall Street Journal, 2009-Nov-12, by Kimberley A. Strassel:

The EPA's Paranoid Style
Employee arguments against cap-and-trade legislation aren't welcome.

Give the Environmental Protection Agency credit: At least it practices equal opportunity censorship of its employees.

Dr. Alan Carlin, a 37-year agency veteran, was muzzled earlier this spring. Dr. Carlin offered a report poking holes in the science underlying the theory of manmade global warming. His superior, Al McGartland, complained the paper did "not help the legal or policy case" for Team Obama's decision to regulate carbon, told him to "move on to other issues," and forbade him from discussing it outside the office.

Now come Laurie Williams and Allan Zabel, married, and each with more than 20 years tenure at the EPA. They too are dismayed by Democrats' approach to climate, though for different reasons. Dedicated environmentalists, they created a 10-minute YouTube video arguing Congress's convoluted cap-and-trade bill was a "big lie" that is too weak. They instead propose imposing taxes, lots of them, on fossil fuels.

Their views aren't new. Earlier this year the duo sent a letter to Congress making the same case. The video has been out for some time, and the pair got clearance from the EPA before they ran it. Mr. Zabel in the opening notes that "nothing in this video is intended to represent the views of EPA or the Obama Administration." It wasn't until the couple ran a high-profile op-ed in the Washington Post in October that the agency nerved out.

A few days after the op-ed, Ms. Williams and Mr. Zabel were contacted by an EPA ethics official telling them to remove the video or face "disciplinary action." EPA says the clearance was subject to "ethics guidelines," which it claims the couple violated. The agency said the video could go back up if it was altered to remove a picture of an EPA building, and to delete mentions of their EPA employment. In particular, Mr. Zabel was not to say that he'd worked on cap-and-trade issues.

Meet the Obama EPA, and its new suppressing, paranoid style. It was the president who once ripped the Bush administration for silencing scientific critics, and it was EPA Administrator Lisa Jackson who began her tenure promising the agency would operate like a "fishbowl." But that was before EPA realized how vastly unpopular is its plan to usurp Congress and regulate the economy on its own, based on its bizarre finding that CO2 is a danger to health.

Faced with unhappy members of Congress, dissenting employees, an opposition business community, and a backlash on the science, Mrs. Jackson is no longer a fan of open government. The goal now is to rush the agency regulations through as quickly as possible, squashing threatening dissent and deflecting troublesome questions.

Reps. Jim Sensenbrenner and Darrell Issa recently put out a report documenting the EPA's slippery handling of its carbon rule, in which it truncated the process and dismissed contrary views. The Chamber of Commerce has been waiting all year for a response to its request for a hearing into the science underlying the regulation. Not a peep.

Alaska Sen. Lisa Murkowski in September requested a discussion with the agency about carbon regulation and legislation. That discussion has yet to happen. Louisiana Sen. David Vitter recently quizzed Mrs. Jackson about a provision in Congress's climate legislation that would give the president awesome power over energy regulation. Mrs. Jackson said it was a "premature" discussion. "The EPA is playing dirty to get green," says Rep. Sensenbrenner. "The agency can't be allowed to silence its scientists just because what they say threatens to delay its political agenda."

There is a legitimate debate over what right administrations have to clamp down on rebel staffers, yet the EPA's stomp on dissenting views appears unprecedented. Dr. Carlin says he's been treated "relatively well" since the blow-up. Yet he has been forbidden from working on climate or attending climate seminars. When asked how this compares to previous administrations, Mr. Carlin says that years ago he actually believed the science was "correct"—a position that put him at odds with the Bush administration.

Mr. Carlin knew one of his top supervisors back then disagreed with him. "At no time did he say don't work on it, don't express these views which are contrary to mine. And he in effect allowed me to work on climate change for five years. . . . I had no problems until March of this current year."

The problem for the EPA is that the Williams-Zabel dust-up is growing, and underlining the gap between the agency's transparency rhetoric and reality. The very media and activists who ran hit jobs on Mr. Carlin are, of course, now furious the agency is quieting card-carrying environmentalists. Public Employees for Environmental Responsibility, a left-leaning outfit that represents scientists has latched on to the Williams-Zabel video, is lamenting that "EPA is abusing ethics rules to gag two conscientious employees" and promising to assist with any litigation.

If the EPA were so proud of this power grab, it ought to be eager to have a discussion, right?

from the New York Times, 2009-Nov-9, printed 2009-Nov-10, p.A22, by John M. Broder and Leslie Kaufman:

Environmental Agency Warns 2 Staff Lawyers Over Video Criticizing Climate Policy

The Environmental Protection Agency has directed two of its lawyers to makes changes to a YouTube video they posted that is critical of the Obama administration’s climate change policy.

The agency, citing federal policies, told the two lawyers, Laurie Williams and Allan Zabel, who are married and based in San Francisco, that they could mention their E.P.A. affiliation only once; must remove language specifying Mr. Zabel’s expertise and their years of employment with the agency; and must remove an image of the agency’s office in San Francisco.

They have been told that if they do not edit the video to comply with the policy, they could face disciplinary action.

The video, titled “The Huge Mistake,” was produced and posted in September. But the agency did not issue its warning until The Washington Post published a widely cited opinion article by the couple on Oct. 31 that raised concerns, echoing those in the video, about cap-and-trade legislation that the Obama administration supports.

Ms. Williams and Mr. Zabel say cap and trade, in which the government sets a limit on gases that contribute to global warming and then lets companies trade permits to meet it, can be easily gamed by industry and fail to reduce the emissions linked to global warming.

On Thursday, Mr. Zabel said, regional ethics officers with the agency met with him to express concerns about the video and to demand that it be taken down by the next day. Ms. Williams was traveling and did not take part in the meeting.

E.P.A. officials said the agency did not object to the content of the video or the op-ed article or challenge the couple’s right to express their opinions. But they said that government ethics rules required them to state that the opinions were their own and not those of the agency.

“E.P.A. has nearly 18,000 employees, and all of them are free to — and many do — publicly express their views on issues of the day, including issues that are central to E.P.A.’s mission,” Scott Fulton, the agency’s general counsel, said in a statement. However, the video did say the opinions were those of Mr. Williams and Ms. Zabel and were not meant to represent the agency.

In addition, Mr. Williams and Ms. Zabel say they quickly removed the video from their Web site and YouTube. But they said that others had copied the video and put it up on separate YouTube accounts and that it is still easily found.

from the Wall Street Journal's Environmental Capital blog, 2009-Nov-9, by Keith Johnson:

Is the Environmental Protection Agency trying to stifle dissenting views on climate change?

The EPA has told two longtime agency veterans and outspoken critics of the administration's cap-and-trade plan to remove any references to the agency in their critiques and to get approval for any future “outside writing projects.” That includes removing their critical video from You Tube.

Laurie Williams and Allan Zabel, a married couple and EPA lawyers in San Francisco, have been railing against cap-and-trade proposals for a while. Most recently, they had a sharply-worded op-ed in the Washington Post that said current legislation would be ineffective and even counterproductive.

The couple stressed that the views they expressed were their own—not the agency's. But they also stressed that their years of experience with the EPA, and specifically working on other cap-and-trade programs, informed their views.

Now Public Employees for Environmental Responsibility has jumped into the fray. The organization, which groups public-sector employees concerned with environmental questions, has re-posted the banned video and come out in defense of the two attorneys:

“EPA is abusing ethics rules to gag two conscientious employees who have every right to speak out as citizens,” stated PEER Executive Director Jeff Ruch, who has re-posted the original video and its script. “EPA reversed itself because someone in headquarters had a tantrum about their Washington Post essay.”

When Ms. Williams and Mr. Zabel first started publicly criticizing cap-and-trade, in the spring of 2008, the EPA gave them a green light. As we noted at the time, “An EPA spokeswoman confirmed that the agency cleared the couple to write the letter, `provided that it was written in their personal capacity and were not speaking on behalf of the agency.'”

We've asked the EPA for comment today.
UPDATE: This from EPA General Counsel Scott Fulton:

EPA has nearly 18,000 employees and all of them are free to – and many do - publicly express their views on issues of the day, including issues that are central to EPA's mission. The only requirement is that employees adhere to the government’s ethical regulations, which are in place to ensure that EPA and other agencies maintain the highest possible ethical standards at all times.

One EPA official said that the agency’s response wasn’t due to the content of the attorneys’ writings, but to the way they highlighted their EPA experience in making their arguments, which runs counter to agency rules federal regulations.

The lawyers' criticism hasn't always gone down well in environmental circles, because many greens worry the pair are providing more ammunition to critics of climate legislation. But even folks who shudder at the lawyers' argments worry that the current spat doesn't look good for free speech, notes Dave Roberts at Grist.

from the Washington Post, 2009-Oct-23, by Charles Krauthammer:

Fox wars
The 'post-partisan' president makes an enemies list

Rahm Emanuel once sent a dead fish to a live pollster. Now he's put a horse's head in Roger Ailes's bed.

Not very subtle. And not very smart. Ailes doesn't scare easily.

The White House has declared war on Fox News. White House communications director Anita Dunn said that Fox is "opinion journalism masquerading as news." Patting rival networks on the head for their authenticity (read: docility), senior adviser David Axelrod declared Fox "not really a news station." And Chief of Staff Emanuel told (warned?) the other networks not to "be led [by] and following Fox."

Meaning? If Fox runs a story critical of the administration -- from exposing "green jobs" czar Van Jones as a loony 9/11 "truther" to exhaustively examining the mathematical chicanery and hidden loopholes in proposed health-care legislation -- the other news organizations should think twice before following the lead.

The signal to corporations is equally clear: You might have dealings with a federal behemoth that not only disburses more than $3 trillion every year but is extending its reach ever deeper into private industry -- finance, autos, soon health care and energy. Think twice before you run an ad on Fox.

At first, there was little reaction from other media. Then on Thursday, the administration tried to make them complicit in an actual boycott of Fox. The Treasury Department made available Ken Feinberg, the executive pay czar, for interviews with the White House "pool" news organizations -- except Fox. The other networks admirably refused, saying they would not interview Feinberg unless Fox was permitted to as well. The administration backed down.

This was an important defeat because there's a principle at stake here. While government can and should debate and criticize opposition voices, the current White House goes beyond that. It wants to delegitimize any significant dissent. The objective is no secret. White House aides openly told Politico that they're engaged in a deliberate campaign to marginalize and ostracize recalcitrants, from Fox to health insurers to the U.S. Chamber of Commerce.

There's nothing illegal about such search-and-destroy tactics. Nor unconstitutional. But our politics are defined not just by limits of legality or constitutionality. We have norms, Madisonian norms.

Madison argued that the safety of a great republic, its defense against tyranny, requires the contest between factions or interests. His insight was to understand "the greater security afforded by a greater variety of parties." They would help guarantee liberty by checking and balancing and restraining each other -- and an otherwise imperious government.

Factions should compete, but they should also recognize the legitimacy of other factions and, indeed, their necessity for a vigorous self-regulating democracy. Seeking to deliberately undermine, delegitimize and destroy is not Madisonian. It is Nixonian.

But didn't Teddy Roosevelt try to destroy the trusts? Of course, but what he took down was monopoly power that was extinguishing smaller independent competing interests. Fox News is no monopoly. It is a singular minority in a sea of liberal media. ABC, NBC, CBS, PBS, NPR, CNN, MSNBC vs. Fox. The lineup is so unbalanced as to be comical -- and that doesn't even include the other commanding heights of the culture that are firmly, flagrantly liberal: Hollywood, the foundations, the universities, the elite newspapers.

Fox and its viewers (numbering more than those of CNN and MSNBC combined) need no defense. Defend Fox compared to whom? To CNN -- which recently unleashed its fact-checkers on a "Saturday Night Live" skit mildly critical of President Obama, but did no checking of a grotesquely racist remark that CNN falsely attributed to Rush Limbaugh?

Defend Fox from whom? Fox's flagship 6 o'clock evening news out of Washington (hosted by Bret Baier, formerly by Brit Hume) is, to my mind, the best hour of news on television. (Definitive evidence: My mother watches it even on the odd night when I'm not on.) Defend Fox from the likes of Anita Dunn? She's been attacked for extolling Mao's political philosophy in a speech at a high school graduation. But the critics miss the surpassing stupidity of her larger point: She was invoking Mao as support and authority for her impassioned plea for individuality and trusting one's own choices. Mao as champion of individuality? Mao, the greatest imposer of mass uniformity in modern history, creator of a slave society of a near-billion worker bees wearing Mao suits and waving the Little Red Book?

The White House communications director cannot be trusted to address high schoolers without uttering inanities. She and her cohorts are now to instruct the country on truth and objectivity?

from the Wall Street Journal, 2009-Oct-22, by Kimberley A. Strassel:

The Chicago Way
The Chamber of Commerce is only the latest target of the Chicago Gang in the White House.

They pull a knife, you pull a gun. He sends one of yours to the hospital, you send one of his to the morgue. That's the Chicago way.

–Jim Malone,

"The Untouchables"

When Barack Obama promised to deliver "a new kind of politics" to Washington, most folk didn't picture Rahm Emanuel with a baseball bat. These days, the capital would make David Mamet, who wrote Malone's memorable movie dialogue, proud.

A White House set on kneecapping its opponents isn't, of course, entirely new. (See: Nixon) What is a little novel is the public and bare-knuckle way in which the Obama team is waging these campaigns against the other side.

In recent weeks the Windy City gang added a new name to their list of societal offenders: the Chamber of Commerce. For the cheek of disagreeing with Democrats on climate and financial regulation, it was reported the Oval Office will neuter the business lobby. Obama adviser Valerie Jarrett slammed the outfit as "old school," and warned CEOs they'd be wise to seek better protection.

That was after the president accused the business lobby of false advertising. And that recent black eye for the Chamber (when several companies, all with Democratic ties, quit in a huff)—think that happened on its own? ("Somebody messes with me, I'm gonna mess with him! Somebody steals from me, I'm gonna say you stole. Not talk to him for spitting on the sidewalk. Understand!?")

The Chamber can at least take comfort in crowds. Who isn't on the business end of the White House's sawed-off shotgun? First up were Chrysler bondholders who—upon balking at a White House deal that rewarded only unions—were privately threatened and then publicly excoriated by the president.

Next, every pharmaceutical, hospital and insurance executive in the nation was held out as a prime obstacle to health-care nirvana. And that was their reward for cooperating. When Humana warned customers about cuts to Medicare under "reform," the White House didn't bother to complain. They went straight for the gag order. When the insurance industry criticized the Baucus health bill, the response was this week's bill to strip them of their federal antitrust immunity. ("I want you to find this nancy-boy . . . I want him dead! I want his family dead! I want his house burned to the ground!")

This summer Arizona Sen. Jon Kyl criticized stimulus dollars. Obama cabinet secretaries sent letters to Arizona Gov. Jan Brewer. One read: "if you prefer to forfeit the money we are making available to the state, as Senator Kyl suggests," let us know. The Arizona Republic wrote: "Let's not mince words here: The White House is intent on shutting Kyl up . . . using whatever means necessary." When Sens. Robert Bennett and Lamar Alexander took issue with the administration's czars, the White House singled them out, by name, on its blog. Sen. Alexander was annoyed enough to take to the floor this week to warn the White House off an "enemies list."

House Minority Whip Eric Cantor? Targeted for the sin of being a up-and-coming conservative voice. Though even Mr. Cantor was shoved aside in August so the Chicago gang could target at least seven Democratic senators, via the president's campaign arm, Organizing for America, for not doing more on health care. ("What I'm saying is: What are you prepared to do??!!")

And don't forget Fox News Channel ("nothing but a lot of talk and a badge!"). Fox, like MSNBC, has its share of commentators. But according to Obama Communications Director Anita Dunn, the entire network is "opinion journalism masquerading as news." Many previous White House press officers, when faced with criticism, try this thing called outreach. The Chicago crowd has boycotted Fox altogether.

What makes these efforts notable is that they are not the lashing out of a frustrated political operation. They are calculated campaigns, designed to create bogeymen, to divide the opposition, to frighten players into compliance. The White House sees a once-in-a-generation opportunity on health care and climate. It is obsessed with winning these near-term battles, and will take no prisoners. It knows that CEOs are easily intimidated and (Fox News ratings aside) it is getting some of its way. Besides, roughing up conservatives gives the liberal blogosphere something to write about besides Guantanamo.

The Oval Office might be more concerned with the long term. It is 10 months in; more than three long years to go. The strategy to play dirty now and triangulate later is risky. One day, say when immigration reform comes due, the Chamber might come in handy. That is if the Chamber isn't too far gone.

White House targets also aren't dopes. The corporate community is realizing that playing nice doesn't guarantee safety. The health executives signed up for reform, only to remain the president's political piñatas. It surely grates that the unions—now running their own ads against ObamaCare—haven't been targeted. If the choice is cooperate and get nailed, or oppose and possibly win, some might take that bet.

There's also the little fact that many Americans voted for this president in thrall to his vow to bring the country together. It's hard to do that amid gunfire, and voters might just notice.

("I do not approve of your methods! Yeah, well . . . You're not from Chicago.")

from the Times of London, 2009-Oct-28, by Dan Sabbagh:

Mandelson to press on with cutting internet links for download pirates

Lord Mandelson will say today that he intends to press ahead with controversial measures to cut off the internet connections of people caught downloading pirated music, films or television programmes.

The Business Secretary plans to introduce legislation to ensure that serial pirates will have their home internet services “suspended” for short periods as the flagship measure of next month's Digital Economy Bill.

It is understood that a service would be disconnected only after a series of offences, with initial breaches incurring warning letters and subsequent contraventions penalised by “throttling” internet connections to reduce download speeds.

Lord Mandelson's intervention — to be made in a speech this morning to creative industries executives — comes after months of pressure from the music industry, led by Lucian Grainge, chief executive of Universal Music.

Should the measure pass through Parliament, a suspension penalty would mean that parents could be at risk of losing their family internet connection if their children repeatedly used it to violate copyright. Concerns about the impact on families meant that the sanction of disconnection was initially dropped when considered in the run-up to the Digital Britain White Paper.

However, weeks after Digital Britain was published, Lord Mandelson decided that the piracy crisis was so severe that he put disconnection back on the table in August.

His speech comes on the last day of the three-day Cabinet conference, which has heard repeated calls from media company leaders for ministers to take a hard line on internet pirates. The French parliament recently passed a law that would sanction the disconnection of a households' internet connection if the subscriber had been caught illegally downloading music, television or film three times.

Jean-Bernard Levy, chief executive of Vivendi, the Paris-based owner of Universal Music, said that it was imperative that Britain mirrored the French “three strikes” law.

Elio Leoni-Sceti, chief executive of EMI Music, said that Britain needed to introduce a system that mirrored the system of speeding penalties for motorists. “It should be like a penalty on your licence the first time you get caught and on the second time you would be at risk of getting your licence taken away.”

Referring to the disconnection of internet services, Gail Rebuck, the UK chief executive of Random House, the publisher, said: “As a content provider, I am all for the ultimate sanction.”

However, the plan has to navigate opposition from BT and Carphone Warehouse, the internet service providers, which have complained about the costs of implementing the scheme and any other technical measures, and say that it would be almost impossible to enforce because technology makes it possible for serial pirates to disguise their online identities.

Next month's Digital Economy Bill will also focus on digital radio, the regulation of computer games and Channel 4 — with clauses giving the Pan-European Game Information (PEGI) age-rating system for computer games a statutory basis for the first time, legislating for changes to Channel 4's remit and outlining the procedure for radio's migration to a digital format, which could result in FM radio being switched off by 2015.

from the Far Eastern Economic Review, 2009-Oct-12, by Christopher Walker and Sarah Cook:

China's Export of Censorship

The Chinese government's effort to prevent dissident authors from taking part in the prestigious Frankfurt Book Fair, an international showcase for freedom of expression, has offered Germany a close-up view of China's intolerance of dissent.

In September, two Chinese writers, journalist Dai Qing and poet Bei Ling, had their invitations to the fair revoked by German event organizers after China's organizing committee complained. The Chinese delegation threatened a boycott over invitations to the writers for a September symposium promoting the Frankfurt Book Fair, which begins on October 14. China is the "guest of honor" at this year's fair. In the face of this pressure, the event's organizers withdrew the invitations. The writers' participation was ultimately enabled when the German PEN club of independent writers invited the two Chinese dissidents.

While Beijing's coercive behavior caught many Germans off guard, it should not have come as a surprise; the Chinese Communist Party's (CCP) censorship ambitions are neither new, nor limited to Germany. In fact, this action is just the latest example of an ongoing pattern of interference, cooptation and intimidation beyond China's borders used to muzzle voices critical of the Chinese government.

Two days after the opening of the Frankfurt Book Fair, a film festival in Taiwan's second largest city, Kaohsiung, will begin. It, too, has come under pressure to censor. In this instance the issue is a planned screening of “The 10 Conditions of Love,” a documentary about exiled Uighur rights activist Rebiya Kadeer. Chinese authorities assert Kadeer has terrorist links, unsubstantiated claims not accepted by most Western countries or independent analysts. Despite pressure to shelve the film—linked to fears that the city's growing industry servicing mainland tourists could be hurt—the Kaohsiung Film Archive and the organizing committee of the 2009 Kaohsiung Film Festival announced on September 27 that it would go ahead with the screening. A similar series of events unfolded at the Melbourne Film Festival this summer.

In September, Uighur activist Dolkun Isa, who holds German citizenship, was denied entry into South Korea, to take part in a conference on democracy. China is South Korea's largest trading partner. Isa, who fled China in 1997 and obtained asylum in Germany, was held at the Seoul airport without explanation for two days after being denied entry to South Korea.

The Chinese authorities have developed an elaborate arsenal of censorship, including an extensive domestic apparatus of information control. Less appreciated and understood are the methods of interference and intimidation employed to muzzle critical voices abroad. Some of the modern authoritarian techniques the Chinese authorities use for this purpose beyond its borders are detailed in a study, “Undermining Democracy: 21st Century Authoritarians,” recently released by Freedom House, Radio Free Europe/Radio Liberty and Radio Free Asia.

Economic coercion is a principal line of attack in the transnational suppression of issues deemed sensitive by China's rulers. The coercion is applied directly and indirectly.

Instances of direct economic coercion and censorship typically occur when an event has already been planned or already begun. Pressure is then applied by Chinese government representatives on the organizers or local authorities to suppress certain activities or appearances deemed undesirable by the CCP. In such instances, explicit or implicit threats of boycotts, trade sanctions, or withdrawal of Chinese government funding have been used to force the hand of those in charge. The CCP's Frankfurt Book Fair gambit fits this model, given the financial implications of the Chinese government's $15 million investment in the event.

More insidious has been an indirect form of economic intimidation, whereby publications, event organizers or governments engage in self-censorship on topics deemed sensitive to the mainland, a dynamic some have dubbed “pre-emptive kowtowing.” Given their small size, proximity and relationship to the mainland, Hong Kong and Taiwan are particularly vulnerable to this phenomenon.

This June, the Hong Kong edition of Esquire magazine, published by South China Media, pulled a feature story by journalist Daisy Chu on the Tiananmen Square massacre slated to run on the 20th anniversary. In 2008, a prominent legal journal in Hong Kong made a last-minute decision not to publish an article on Tibetan self-determination. A blackout on independent coverage of the Falun Gong is believed to be practiced among certain Hong Kong and Taiwanese outlets whose owners have close ties to Beijing or significant business interests on the mainland.

As China's economic clout and role on the global stage grows, it will inevitably exert greater influence beyond its borders. However, the issue is not whether China—which features one the world's least hospitable environments for free expression—will project influence but what shape this growing power will take. The CCP plans, for instance, to spend billions of dollars on expanding its overseas media operations in a potentially massive show of “soft power.” But whether this enormous investment will simply project the deeply illiberal values that characterize China's domestic media scene to a wider playing field is a question advocates of free expression should seriously ponder.

This critical question, so far, does not provide an encouraging answer.

China's attempts to insinuate itself into Taiwan's media sector, and Beijing's ongoing efforts to limit the vitality of Hong Kong's media, are among the examples of this phenomenon in Asia. The CCP has recently demonstrated its willingness to suppress open expression in Germany and Australia. The United States is not immune to this pressure. The Dalai Lama will be waiting a bit longer for his meeting with President Obama.

The Chinese government's position at the vanguard of efforts to monitor and filter Internet content, using its wealth and technical acumen to devise methods to limit the free and independent flow of information online, also has serious transnational implications for free expression. China effectively serves as an incubator for new media suppression; authoritarian governments around the world carefully watch China's censorship techniques and learn from its innovations.

The community of democratic states must acknowledge the Chinese government's growing media ambitions and efforts to censor beyond its borders. Acquiescence in this challenge will only embolden the Chinese authorities.

Christopher Walker is director of studies and Sarah Cook is an Asia researcher at Freedom House.

from the Wall Street Journal, 2009-Oct-25, by Mary Anastasia O'Grady:

Argentina's Kirchner Targets the Press
As the state-run economy hits the skids, the government responds with a crackdown on the free press.

One way a president can boost poll numbers in a bad economy is to wrest control of the central bank and start printing lots of pesos. There's nothing like cheap financing to restore the market's enthusiasm for buying all sorts of stuff—from stocks to houses—already on sale at fire sale prices. The great reflation will make people feel rich again. A weak currency will also be a short-term boon to exporters, whose profits can then be taxed at ever higher rates. Complainers can be denounced for their greed.

Of course this perpetual motion machine will eventually conk out and when it does, a government that expects to survive will find it necessary to silence its critics. Just ask Argentines, who are living all of this in real time.

After more than five years of heavy state intervention in the economy, Argentina is again sliding into recession. Double-digit inflation is spiraling north and the government is running out of money. In response, President Cristina Kirchner is cracking down on the free press. Argentines are wondering if their democracy will survive.

The story of how Argentina got here is important to recall. The economy was flat on its back after the 2001-2002 collapse of "convertibility," the monetary arrangement that pegged the peso to the dollar. A demoralized nation was looking for a savior.

It thought it found one in Néstor Kirchner. He became president in 2003 and set about to restore the state-run economic model of Juan Peron; the market, he maintained, had failed. Mr. Kirchner took control of the central bank. He demonized the private-sector and investors. Using price controls, subsidies and regulation he made himself a Robin Hood to the masses. The legislature granted him extraordinary powers.

The economy bounced back as one would expect after a harsh contraction, and in 2007 his wife was elected president with 45% of the vote.

Now the illusionists are losing their touch. Not only is the economy going sour, but according to polls, the nation is growing intolerant of what many consider to be the first couple's abuse of power.

Four examples serve to make the point: First, when Mrs. Kirchner attacked the farm sector last year because it resisted her plan to impose high export taxes on its harvests, the nation rallied to the defense of the farmers, much to her surprise. Second, her decision to confiscate privately held pension accounts was loudly denounced as a violation of the rule of law. Third, there is a widespread belief that her government is using the state intelligence service to collect information against the president's "enemies." Fourth, an overwhelming majority of Argentines resent the privileges and jet-set lifestyle of the first family while national living standards plummet.

This popular dissatisfaction showed up at the polls in the June midterm elections, when Mrs. Kirchner's wing of the Peronist party lost badly. Even Mr. Kirchner did not manage to prevail in his bid for a house seat representing the province of Buenos Aires, which should have been a stronghold for the first couple.

Mrs. Kirchner and her husband have decided that they lost because of bad press coverage. They are especially upset with the Clarin media company, which though once a supporter, is now an outspoken critic. In public comments Mr. Kirchner often implies that the government is analyzing the company to see if it might not need to be downsized. In September, tax authorities launched a raid on the Buenos Aires offices of its daily newspaper. Tax authorities later issued an apology for the raid, but the paper maintains that it was an act of intimidation.

Yet the problem of bad press for the Kirchners is much bigger than Clarin. As the antimarket economic model hits the skids, the nation is turning against its architects and a free press will not remain silent. This is why the president forced a media law through the legislature two weeks ago, creating a new "audio-visual" regulatory board controlled by the executive.

The law also grants the executive control over all licensing of the radio spectrum and reserves at least two-thirds of it for state-owned and nongovernmental broadcasters approved by the executive. There is concern that Mrs. Kirchner is now preparing to take over the most important domestic supplier of newsprint and to begin using import licensing to control access to foreign supplies.

Hugo Chávez has become a dictator in Venezuela under the guise of democracy, and he has similarly shut down the free press. Argentines are worried.

Last week in the Argentine daily La Nación, philosopher and writer Santiago Kovadloff summed up opposition sentiment about the government's use of "the law" to consolidate power: "The law has become a beloved tool of corruption," Mr. Kovadloff wrote. "The executive has put it at its service. It manipulates it with skill." And where does that leave society? "Insecurity is no longer a threat. We are in the jungle."

from the Weekly Standard, 2009-Oct-5, by Anne Bayefsky:

You Can't Say That
At the UN, the Obama administration backs limits on free speech.

The Obama administration has marked its first foray into the UN human rights establishment by backing calls for limits on freedom of expression. The newly-minted American policy was rolled out at the latest session of the UN Human Rights Council, which ended in Geneva on Friday. American diplomats were there for the first time as full Council members and intent on making friends.

President Obama chose to join the Council despite the fact that the Organization of the Islamic Conference holds the balance of power and human rights abusers are among its lead actors, including China, Cuba, and Saudi Arabia. Islamic states quickly interpreted the president's penchant for "engagement" as meaning fundamental rights were now up for grabs. Few would have predicted, however, that the shift would begin with America's most treasured freedom.

For more than a decade, a UN resolution on the freedom of expression was shepherded through the Council, and the now defunct Commission on Human Rights which it replaced, by Canada. Over the years, Canada tried mightily to garner consensus on certain minimum standards, but the "reformed" Council changed the distribution of seats on the UN's lead human rights body. In 2008, against the backdrop of the publication of images of Mohammed in a Danish newspaper, Cuba and various Islamic countries destroyed the consensus and rammed through an amendment which introduced a limit on any speech they claimed was an "abuse . . . [that] constitutes an act of racial or religious discrimination."

The Obama administration decided that a revamped freedom of expression resolution, extracted from Canadian hands, would be an ideal emblem for its new engagement policy. So it cosponsored a resolution on the subject with none other than Egypt--a country characterized by an absence of freedom of expression.

Privately, other Western governments were taken aback and watched the weeks of negotiations with dismay as it became clear that American negotiators wanted consensus at all costs. In introducing the resolution on Thursday, October 1--adopted by consensus the following day--the ranking U.S. diplomat, Chargé d'Affaires Douglas Griffiths, crowed:

"The United States is very pleased to present this joint project with Egypt. This initiative is a manifestation of the Obama administration's commitment to multilateral engagement throughout the United Nations and of our genuine desire to seek and build cooperation based upon mutual interest and mutual respect in pursuit of our shared common principles of tolerance and the dignity of all human beings."

His Egyptian counterpart, Ambassador Hisham Badr, was equally pleased--for all the wrong reasons. He praised the development by telling the Council that "freedom of expression . . . has been sometimes misused," insisting on limits consistent with the "true nature of this right" and demanding that the "the media must . . . conduct . . . itself in a professional and ethical manner."

The new resolution, championed by the Obama administration, has a number of disturbing elements. It emphasizes that "the exercise of the right to freedom of expression carries with it special duties and responsibilities . . ." which include taking action against anything meeting the description of "negative racial and religious stereotyping." It also purports to "recognize . . . the moral and social responsibilities of the media" and supports "the media's elaboration of voluntary codes of professional ethical conduct" in relation to "combating racism, racial discrimination, xenophobia and related intolerance." Pakistan's Ambassador Zamir Akram, speaking on behalf of the Organization of the Islamic Conference, made it clear that they understand the resolution and its protection against religious stereotyping as allowing free speech to be trumped by anything that defames or negatively stereotypes religion. The idea of protecting the human rights "of religions" instead of individuals is a favorite of those countries that do not protect free speech and which use religion--as defined by government--to curtail it.

Even the normally feeble European Union tried to salvage the American capitulation by expressing the hope that the resolution might be read a different way. Speaking on behalf of the EU following the resolution's adoption, French Ambassador Jean-Baptiste Mattéi declared that "human rights law does not, and should not, protect religions or belief systems, hence the language on stereotyping only applies to stereotyping of individuals . . . and not of ideologies, religions or abstract values. The EU rejects the concept of defamation of religions." The EU also distanced itself from the American compromise on the media, declaring that "the notion of a moral and social responsibility of the media" goes "well beyond" existing international law and "the EU cannot subscribe to this concept in such general terms."

In 1992 when the United States ratified the main international law treaty which addresses freedom of expression, the government carefully attached reservations to ensure that the treaty could not "restrict the right of free speech and association protected by the Constitution and laws of the United States."

The Obama administration's debut at the Human Rights Council laid bare its very different priorities. Threatening freedom of expression is a price for engagement with the Islamic world that it is evidently prepared to pay.

Anne Bayefsky is a senior fellow at the Hudson Institute, a professor at Touro College, and the editor of EYEontheUN.org.

from the Wall Street Journal, 2009-Oct-17, p.A13, by Peter Berkowitz:

Academia Goes Silent on Free Speech
Yale's decision to censor anti-Muslim cartoons deserved a thoughtful debate. We didn't get one.

Professors have a professional interest in—indeed a professional duty to uphold—liberty of thought and discussion. But in recent years, precisely where they should be most engaged and outspoken they have been apathetic and inarticulate.

Consider Yale. On Oct. 1, the university hosted Danish cartoonist Kurt Westergaard. His drawing of Muhammad with a bomb in his turban became the best known of 12 cartoons published by the Danish newspaper Jyllands-Posten in September 2005. That led to deadly protests throughout the Muslim world. On the same day, at an unrelated event, Yale hosted Brandeis Prof. Jytte Klausen. Her new book, "The Cartoons that Shook the World," was subject in August to a last minute prepublication decision by Yale President Richard Levin and Yale University Press to remove not only the 12 cartoons but also all representations of Muhammad, including respected works of art.

The Westergaard appearance inspired protests. Muslim students condemned Yale's invitation to the cartoonist as religiously and racially insensitive, compared him to Holocaust deniers and white supremacists, and declared his art and utterances hate speech rather than free speech.

Students will be students. It is to be hoped that those who opposed Mr. Westergaard's invitation will learn at Yale that the aim of liberal education is not to guard their sensitivities but to teach them to listen to diverse opinions and fortify them to respond with better arguments to those with whom they disagree.

Mr. Westergaard's appearance did prompt a small faculty-led panel discussion on Oct. 7. It dealt mainly with Muslim reaction to the cartoons, though Prof. Seyla Benhabib said that in Ms. Klausen's position she would have withdrawn the book. But generally the faculty has been unmoved by Yale's censorship of Ms. Klausen's book, which suggests that lessons in the fundamentals of liberty of thought and discussion may be lacking on campus.

To be sure, Yale's censorship—the right word because Yale suppressed content on moral and political grounds—raised difficult questions. Can't rights, including freedom of speech and press, be limited to accommodate other rights and goods? What if reprinting the cartoons and other depictions gave thugs and extremists a new opportunity to inflame passions and unleash violence? Can't the consequences of the cartoons' original publication be understood without reproducing them? Weren't the cartoons really akin, as Yale Senior Lecturer Charles Hill pointed out in a letter to the Yale Alumni magazine, to the depictions of Jews as grotesque monsters that successive American administrations have sought to persuade Arab newspapers to cease publishing? And isn't it true, as Mr. Hill also observed, that Yale's obligation to defend free speech does not oblige it to subsidize gratuitously offensive or intellectually worthless speech?

These are good questions—to which there are good answers.

Rights are subject to limits, but a right as fundamental to the university and the nation as freedom of speech and press should only be limited in cases of imminent danger and not in deference to speculation about possible violence at an indeterminate future date. One can't properly evaluate Ms. Klausen's contention that the cartoons were cynically manipulated without assessing with one's own eyes whether the images passed beyond mockery and ridicule to the direct incitement of violence.

Even if the cartoons exhibited a kinship to anti-Semitic caricatures, it would cut in favor of publication: a scholar would be derelict in his duties if he published a work on anti-Semitic images without including examples. And finally, if Yale chooses to publish a rigorous analysis of the Danish cartoon controversy, which affected the national interest and roiled world affairs, then the university does incur a scholarly obligation to include all the relevant information and evidence including the cartoons at the center, regardless of whether they are in themselves gratuitously offensive and intellectually worthless.

The wonder is that Yale's censorship has excited so little debate at Yale. The American Association of University Professors condemned Yale for caving in to terrorists' "anticipated demands." And a group of distinguished alumni formed the Yale Committee for a Free Press and published a letter protesting Yale's "surrender to potential unknown billigerents" and calling on the university to correct its error by reprinting Ms. Klausen's book with the cartoons and other images intact. But the Yale faculty has mostly yawned. Even the famously activist Yale Law School has, according to its director of public affairs, sponsored no programs on censorship and the university.

Alas, there is good reason to suppose that in its complacency about threats to freedom on campus the Yale faculty is typical of faculties at our leading universities. In 2006, even as the police had barely begun their investigation, Duke University President Richard Brodhead lent the prestige of his office to faculty members' prosecution and conviction in the court of public opinion of three members of the Duke lacrosse team falsely accused of gang raping an African-American exotic dancer. It turned out they were being pursued by a rogue prosecutor. To be sure, it was only a vocal minority at Duke who led the public rush to judgment. But the vast majority of the faculty stood idly by, never rising to defend the presumption of innocence and the requirements of fair process. Perhaps Duke faculty members did not realize or perhaps they did not care that these formal and fundamental protections against the abuse of power belong among the conditions essential to the lively exchange of ideas at the heart of liberal education.

Similarly, in 2005, Harvard President Lawrence Summers sparked a faculty revolt that ultimately led to his ouster by floating at a closed-door, off-the-record meeting the hypothesis—which he gave reasons for rejecting only a few breaths after posing it—that women were poorly represented among natural science faculties because significantly fewer women than men are born with the extraordinary theoretical intelligence necessary to succeed at the highest scientific levels. Before he was forced to resign, Mr. Summers did his part to set back the cause of unfettered intellectual inquiry by taking the side of his accusers and apologizing repeatedly for having dared to expose an unpopular idea to rational analysis. Apart from a few honorable exceptions, the Harvard faculty could not find a principle worth defending in the controversy over Mr. Summer's remarks.

As the controversies at Yale, Duke and Harvard captured national attention, professors from other universities haven't had much to say in defense of liberty of thought and discussion either. This silence represents a collective failure of America's professors of colossal proportions. What could be a clearer sign of our professors' loss of understanding of the requirements of liberal education than their failure to defend liberty of thought and discussion where it touches them most directly?

Mr. Berkowitz is a fellow at Stanford University's Hoover Institution.

from the Wall Street Journal, 2009-Oct-18, by L. Gordon Crovitz:

Bloggers Mugged by Regulators
The FTC wants to police book reviews on Twitter.

There's a saying that a neoconservative is a liberal who has been mugged by reality. We've now learned that bloggers mugged by regulators become economic libertarians.

Earlier this month, the Federal Trade Commission issued its "Guides Concerning the Use of Endorsements and Testimonials in Advertising," last updated in 1980. These rules historically regulated what celebrity endorsers can say and how advertisers can use research claims.

This time the agency decided that regulations covering "endorsements and testimonials" should apply to people commenting on product or services, such as reviewing the latest gadgets or fashions, through blogs, Facebook posts and Twitter updates. The blogosphere erupted.

The guidelines require people to disclose online if they have what the FTC vaguely defines as "material connections" with the sellers of a product or service. This could include getting free samples on which they base comments or reviews. Bloggers objected to the double standard that exempts traditional media from the rules—many newspapers, magazines and broadcasters accept free books and other products for their reviewers.

Bloggers are for more transparency—it's only ethical to disclose products provided free—but argue that their activities are squarely in the realm of speech, not commerce. The guidelines are "an attack on markets and free speech, based on a 20th Century notion of media and advertising that simply doesn't map to the new era," Dan Gillmor posted on his technology blog. "The advertising of the past was a one-to-many system. Call it broadcasting. The Internet is a many-to-many system. Call it conversation. They are not the same."

Or as blogger Jeff Jarvis posted, "For the FTC to go after bloggers and social media—as they explicitly do—is the same as sending a government goon into Denny's to listen to the conversations in the corner booth and demand that you disclose that your Uncle Vinnie owns the pizzeria whose product you endorsed."

There are also practical objections. For example, if you get a free copy of a book and then post a comment about it on Twitter, how many of the permitted 140 characters must be dedicated to the disclosure? Do employees of a company have to disclose the fact of their employment every time they comment on its products through their personal Facebook accounts?

The reaction to the regulations was so strong that last week the FTC tried to step back. The agency said it planned to bring actions against companies as advertisers, not against bloggers or individuals. But the draft rules cover anyone who comments on products and fails to disclose a relationship, even getting a free CD or music download and then commenting on the song.

Randall Rothenberg, head of the Interactive Advertising Bureau, wrote a cheeky open letter to FTC head Jon Leibowitz titled "Chairman Leibowitz, Tear Down This Blogger Wall!" He said the regulations are based on a view that "opinions published by individuals have less protection than speech promulgated by large corporations; that 'traditional' distribution channels deserve more protection than innovative online channels; and, finally, that the Internet, the cheapest, freest, most accessible communications medium ever invented, should have less freedom than other media."

There should be more disclosure, but the Web is different from earlier media in ways that make government regulation less relevant and practical. The Web has its own self-regulatory mechanisms. Failing to disclose interests sullies one's reputation online, and reputation harm travels faster and lasts longer than it did before the Web.

There's also greater need for caveat emptor online, because there is no practical way that any government agency can monitor the world's bloggers and posters. There will always be people who post comments about products and services that are self-serving in one way or another, at least by someone's definition.

This is why independent brands that stand for objectivity continue to flourish. ConsumerReports.org has more than three million paying subscribers even with—especially with?—the many free product reviews posted by consumers online. Many of the most consistently popular bloggers have likewise earned reputations for operating with full transparency, which contributes to their popularity.

Instead of trying to extend analog-era regulations onto the Web, the FTC should encourage readers to be vigilant about assessing for themselves the independence of sources online. At least we now know the biggest fraudulent claim so far on the Web: It's been committed by regulators claiming there can be a government stamp of approval on everything anyone posts anywhere on the Web.

from the Wall Street Journal, 2009-Oct-8, by Eric Felten:

Save Us From the Swag-Takers

The Federal Trade Commission, eager to protect us from shoddy media practices, issued new regulations this week requiring full disclosure from a variety of sneaky characters. Celebrities are on notice that if they sing the praises of product X while on Oprah's couch, they had better mention how much the makers of product X are paying them, even if that payment is nothing more than a free sample in a goodie bag. The famous are not the FTC's only target. The agency declared that "a blogger who receives cash or in-kind payment to review a product is considered an endorsement." Sounds reasonable enough, until it becomes clear just how expansive the FTC's concept of an "in-kind payment" is. The blogger who gets a free review copy of a book and writes up his opinion of it is now being labeled by the government a commercial endorser of the book—even if he pans it. This is not how traditional media are treated, which is what makes the new rules so significant: The government has weighed in on the contentious topic of whether bloggers are journalists—and delivered a resounding No.

The specter of freebies has long haunted journalism. In the '30s, '40s and '50s, Hollywood columnist Louella Parsons was famous for her swag intake. Come Christmas Eve she would "unwrap an avalanche of gifts" from Tinseltown royalty, according to screenwriter Anita Loos. "Two secretaries used to stand with notebooks to keep score so that Louella could remember the next day who had sent what." Those notes weren't taken to help her make proper disclosures to her readers.

Most newspapers and some magazines have tightened their standards in the years since. But that hardly means that the gravy train has stopped running. Many are the junkets enjoyed by travel writers. Jumbo are the shrimp and deep are the highballs at most media events. In writing the "How's Your Drink?" column for The Wall Street Journal, I found that spirits publicists were confused, even perplexed, when I explained that it was Journal policy for me to buy the liquor I tasted.

And yet even newspapers with the strictest of ethics rules accept free copies of books for review. Movie, music and theater reviewers get their tickets comped. The scribblers covering sports aren't in the habit of paying skybox rates for their privileged perches at the stadium. While newspapers make no secret of these common practices, they don't plaster warnings on every book review or description of a football game. But that's exactly what the FTC is requiring of bloggers.

"I think this is absurd," says Alejandra Ramos, who writes a foodie blog called Always Order Dessert. She also happens to be an editor for a prominent women's fashion and lifestyle magazine and suggests that the FTC is laughably na*iuml;ve when it comes to the standards and practices of her business: "Magazines are sent free products all the time." So much so that staffers have to be encouraged to take products home just to clear out the "beauty closets." And yet, Ms. Ramos says, when a big glossy does a feature on "seven mascaras that will make your lashes look longer, they do not appear with a disclaimer that 'L'Oreal sent us this mascara for free.' " Why, she asks, should the law treat bloggers any differently?

A cynic might suggest that bloggers are being singled out because, lacking deep pockets to litigate, they are easy targets for a federal agency looking to expand government regulation of speech. Full disclosure and squeaky-clean ethics are the stuff that earn trust for any journalist, not just bloggers. But as Sam Bayard, a fellow at Harvard Law School's Berkman Center for Internet & Society asks: "Do we need the government requiring it?" First Amendment doctrine puts a heavy burden on the state not to "chill" speech unless there is a compelling interest, a serious harm to be averted. A little faith in consumers' common-sense capacity to spot phonies and frauds is in order. When a lousy book gets an effusive five-star rave from an anonymous Amazon poster, do we need the feds to warn us that it just might be the author's mother typing away?

Blogola hardly goes unchallenged. The rough and tumble of Internet speech has encouraged the outing of those on the take. But even if it hadn't, is the prospect of bloggers in the bag really so pernicious that it justifies the notion that their free-speech rights are less robust than those of, say, ecdysiasts?

And then there's the question of just what counts as a "material connection" shared "with the seller of the product or service." Consider the young bloggers advertising the advantages of attending M.I.T. The school's admissions office, like that of many colleges, encourages students to write about their experiences in and out of class. One might be forgiven for mistaking this as an unobjectionable effort to give prospective students a window on campus life. But if the FTC guidelines are to be believed, it's a scam. The FTC requires the full scope of the financial relationship between bloggers and their corporate enablers to be revealed. How many college students actually pay full freight for their educations? If a student blogger wants to post about his college, he'll need to account for every penny of financial aid he has accepted.

The FTC has been saying not to worry because it plans to bring actions against violators only in rare cases—as though the promise of selective enforcement is a balm to those worried about regulatory overreach. Who knows how widely the FTC's regulations involving bloggers and celebrities might extend? Then again, maybe it's not such a bad idea after all: Given the new imperative that public figures disclose the clothes they are given, the agency might want to require a disclaimer from doctors who parade about the Rose Garden in spiffy white lab coats they didn't buy.

FULL DISCLOSURE NOTICE: In preparing this column, I downloaded a free copy of the new FTC regulatory guidelines. Thanks, guys!

from the Wall Street Journal, 2009-Oct-4, by L. Gordon Crovitz:

More Insults, Please
Blocking Muslim cartoons and other attempts at Web censorship.

In today's world of instant global communication, disagreements happen more quickly and resentments get established in real time. Just as the British and Americans have been called two nations divided by a common language, today we all share the Internet, yet we are divided by the instant communicating that digital technology makes possible.

Recall the incident in 2005, when a Danish newspaper printed a dozen cartoons featuring the Prophet Mohammed, including one with a bomb in his turban. Posting the cartoons on the Web resulted in protests in much of the Muslim world, including riots and deaths. The bomb-in-the-turban cartoonist, Kurt Westergaard, has received death threats and lives under 24-hour police protection in Copenhagen. Last week he visited the U.S., with the message that when it comes to insult and humor, there is little common ground around the world.

"As the Danish tradition is for satire, we say you can speak freely, you can vote, you can speak out any time, but there's only one thing you can't do—you can't be free of being mocked or being offended," Mr. Westergaard said in a speech in New York City. "That's the condition in Denmark."

Insults are a longstanding part of free expression in much of the West but are under pressure in our digital era of instantaneous communication. Instead of the Internet adding to freedom as we usually assume it does, its global reach makes it an excuse for censorship. Many governments lobby for anti-insult laws, even though insults are a key means of criticism. Leaders of several Muslim countries have tried to get perceived insults to their religion reclassified as offenses.

The Jyllands-Posten newspaper solicited cartoons after threats to Danes by Islamists, including physical attacks on authors, musicians and academics. "In this situation the paper felt that it was imperative to test whether we still enjoyed free speech," Mr. Westergaard wrote in Princeton University's student newspaper last week. This included "the right to treat Islam, Muhammad and Muslims exactly as you would any other religion, prophet or group of believers. If we no longer had that right, one could only conclude that the country had succumbed to de facto sharia law."

As the cartoons spread on the Web, agitators in several countries fanned the flames by adding mocking cartoons and photos that had not actually appeared in the Danish newspaper. Danish Embassies were burned in Syria, Lebanon and Iran, and its exports were boycotted. Prime Minister Anders Fogh Rasmussen, now NATO's secretary-general, refused to apologize.

The issue faded until this August, when Yale University Press decided to remove the cartoons from a book it had agreed to publish called "The Cartoons That Shook the World," by Brandeis University Prof. Jytte Klausen. Yale claimed that it was censoring not based on content but because of the risk of violence.

A group of Yale graduates sent a letter objecting. "I think it's horrifying that the campus of Nathan Hale has become the first place where America surrenders to this kind of fear because of what extremists might possibly do," said one of the graduates, Michael Steinberg.

Insults are under threat in many countries. The World Press Freedom Committee earlier this year published a survey, "The Right to Offend, Shock or Disturb," which details how laws against insults are being used to squelch free speech, including opposition to the government.

Last year, French President Nicolas Sarkozy tried to use a 19th-century law against insulting the president to ban voodoo dolls featuring his likeness. The editor of another Web site in Saudi Arabia had to flee the country when he was accused of insulting Islam by criticizing the kingdom's religious police. And in 2007, a Web site in Russia was fined for publishing an article titled "Putin as Phallic Symbol of Russia," satirizing the prime minister's effort to increase the country's birthrate.

Contrast this with the admiration we have for great insults. Winston Churchill was the master of the putdown, dismissing various political opponents as "a modest man, who has much to be modest about," "a sheep in sheep's clothing," and someone who "has all the virtues I dislike and none of the vices I admire."

An article in Heeb, a self-mockingly named Jewish satire magazine, criticized Yale's censorship of the Danish cartoons: "While we would definitely be opposed to Yale University desecrating the Torah, we certainly wouldn't think it inappropriate if, in a book about the subject, they showed some photos of desecrated Torahs." The writer tried to follow Yale's contorted reasoning to justify the removal of the cartoons from a book about the cartoons, but gave up: "Who knows? We have no idea, but one thing is for sure—we know who we're rooting for in this year's Harvard-Yale game." Nice insult.

from CNET News.com, 2009-Aug-28, by Declan McCullagh:

Bill would give president emergency control of Internet

Internet companies and civil liberties groups were alarmed this spring when a U.S. Senate bill proposed handing the White House the power to disconnect private-sector computers from the Internet.

They're not much happier about a revised version that aides to Sen. Jay Rockefeller, a West Virginia Democrat, have spent months drafting behind closed doors. CNET News has obtained a copy of the 55-page draft of S.773 (excerpt), which still appears to permit the president to seize temporary control of private-sector networks during a so-called cybersecurity emergency.

The new version would allow the president to "declare a cybersecurity emergency" relating to "non-governmental" computer networks and do what's necessary to respond to the threat. Other sections of the proposal include a federal certification program for "cybersecurity professionals," and a requirement that certain computer systems and networks in the private sector be managed by people who have been awarded that license.

"I think the redraft, while improved, remains troubling due to its vagueness," said Larry Clinton, president of the Internet Security Alliance, which counts representatives of Verizon, Verisign, Nortel, and Carnegie Mellon University on its board. "It is unclear what authority Sen. Rockefeller thinks is necessary over the private sector. Unless this is clarified, we cannot properly analyze, let alone support the bill."

Representatives of other large Internet and telecommunications companies expressed concerns about the bill in a teleconference with Rockefeller's aides this week, but were not immediately available for interviews on Thursday.

A spokesman for Rockefeller also declined to comment on the record Thursday, saying that many people were unavailable because of the summer recess. A Senate source familiar with the bill compared the president's power to take control of portions of the Internet to what President Bush did when grounding all aircraft on Sept. 11, 2001. The source said that one primary concern was the electrical grid, and what would happen if it were attacked from a broadband connection.

When Rockefeller, the chairman of the Senate Commerce committee, and Olympia Snowe (R-Maine) introduced the original bill in April, they claimed it was vital to protect national cybersecurity. "We must protect our critical infrastructure at all costs--from our water to our electricity, to banking, traffic lights and electronic health records," Rockefeller said.

The Rockefeller proposal plays out against a broader concern in Washington, D.C., about the government's role in cybersecurity. In May, President Obama acknowledged that the government is "not as prepared" as it should be to respond to disruptions and announced that a new cybersecurity coordinator position would be created inside the White House staff. Three months later, that post remains empty, one top cybersecurity aide has quit, and some wags have begun to wonder why a government that receives failing marks on cybersecurity should be trusted to instruct the private sector what to do.

Rockefeller's revised legislation seeks to reshuffle the way the federal government addresses the topic. It requires a "cybersecurity workforce plan" from every federal agency, a "dashboard" pilot project, measurements of hiring effectiveness, and the implementation of a "comprehensive national cybersecurity strategy" in six months--even though its mandatory legal review will take a year to complete.

The privacy implications of sweeping changes implemented before the legal review is finished worry Lee Tien, a senior staff attorney with the Electronic Frontier Foundation in San Francisco. "As soon as you're saying that the federal government is going to be exercising this kind of power over private networks, it's going to be a really big issue," he says.

Probably the most controversial language begins in Section 201, which permits the president to "direct the national response to the cyber threat" if necessary for "the national defense and security." The White House is supposed to engage in "periodic mapping" of private networks deemed to be critical, and those companies "shall share" requested information with the federal government. ("Cyber" is defined as anything having to do with the Internet, telecommunications, computers, or computer networks.)

"The language has changed but it doesn't contain any real additional limits," EFF's Tien says. "It simply switches the more direct and obvious language they had originally to the more ambiguous (version)...The designation of what is a critical infrastructure system or network as far as I can tell has no specific process. There's no provision for any administrative process or review. That's where the problems seem to start. And then you have the amorphous powers that go along with it."

Translation: If your company is deemed "critical," a new set of regulations kick in involving who you can hire, what information you must disclose, and when the government would exercise control over your computers or network.

The Internet Security Alliance's Clinton adds that his group is "supportive of increased federal involvement to enhance cyber security, but we believe that the wrong approach, as embodied in this bill as introduced, will be counterproductive both from an national economic and national secuity perspective."

Update at 3:14 p.m. PDT: I just talked to Jena Longo, deputy communications director for the Senate Commerce committee, on the phone. She sent me e-mail with this statement:

The president of the United States has always had the constitutional authority, and duty, to protect the American people and direct the national response to any emergency that threatens the security and safety of the United States. The Rockefeller-Snowe Cybersecurity bill makes it clear that the president's authority includes securing our national cyber infrastructure from attack. The section of the bill that addresses this issue, applies specifically to the national response to a severe attack or natural disaster. This particular legislative language is based on longstanding statutory authorities for wartime use of communications networks. To be very clear, the Rockefeller-Snowe bill will not empower a "government shutdown or takeover of the Internet" and any suggestion otherwise is misleading and false. The purpose of this language is to clarify how the president directs the public-private response to a crisis, secure our economy and safeguard our financial networks, protect the American people, their privacy and civil liberties, and coordinate the government's response.

Unfortunately, I'm still waiting for an on-the-record answer to these four questions that I asked her colleague on Wednesday. I'll let you know if and when I get a response.

from the Wall Street Journal, 2009-Oct-2, by Jeremy Rabkin and Jeffrey Eisenach:

The U.S. Abandons the Internet
Multilateral governance of the domain name system risks censorship and repression.

There's a lot of concern out there right now about America's world leadership—facing down Iran's nuclear program, bracing NATO's commitment in Afghanistan, maintaining free trade. Here's something else to worry about: Has the Obama administration just given up U.S. responsibility for protecting the Internet?

What makes it possible for users to connect with all the different Web sites on the Internet is the system that allocates a unique electronic address to each site. The addresses are organized within larger entities called top-level domains—".com," ".edu," ".gov" and so on. Overseeing this arrangement is a relatively obscure entity, the Internet Corporation for Assigned Names and Numbers (ICANN). Without the effective oversight of ICANN, the Internet as we know it would not exist, billions of dollars of online commerce and intellectual property would be at risk, and various forms of mass censorship could become the norm.

Since its establishment in 1998, ICANN has operated under a formal contract with the U.S. Department of Commerce, which stipulated the duties and limits that the U.S. government expected ICANN to respect. The Commerce Department did not provide much active oversight, although the need to renew this contract, called the Joint Project Agreement (JPA), helped keep ICANN policies within reasonable bounds. That's why last spring, when the Commerce Department asked for comment on ending the JPA, the U.S. business community opposed the idea.

But the U.S. government's role in ICANN has long been a source of complaint from foreign nations. United Nations conferences have repeatedly voiced concerns about "domination of the Internet by one power" and suggested that management of the system should be handed off to the International Telecommunications Union—a U.N. agency dominated by developing countries. The European Union has urged a different scheme in which a G-12 of advanced countries would manage the Internet.

The Obama administration has declined to endorse such alternatives. Instead it has replaced the latest JPA, which expired Sept. 30, with a vaguely worded "Affirmation of Commitments." In it, ICANN promises to be a good manager of the Internet, and the Commerce Department promises—well, not much of anything. The U.S. will participate in a Governmental Advisory Committee along with some three dozen other nations but claims no greater authority than any other country on the committee, whose recommendations are not binding on ICANN in any case.

An ICANN cut loose from U.S. government oversight will not, for that reason, be free from political pressures. One source of pressure will come from disputes about expanding top-level domain names. For example, would a ".xxx" domain help to isolate pornographic sites in a unique (and blockable) special area, or would it encourage censorship in other domains by suggesting that offensive images only appear there? Should we have ".food" or ".toys" along with ".com" domains? If we do, as the Justice Department warned last year in a letter to Commerce, companies that have invested huge sums to protect their trademarks under ".com" will have to fight for protection of their names in the new domains. Yet strangely, there is not a word in the new plan about protecting trademark rights or other intellectual property interests that might be threatened by new ICANN policies.

Even more disturbing is the prospect that foreign countries will pressure ICANN to impose Internet controls that facilitate their own censorship schemes. Countries like China and Iran already block Web sites they regard as politically objectionable. Islamic nations insist that the proper understanding of international human-rights treaties requires suppression of "Islamophobic" content on the Internet. Will ICANN be better situated to resist such pressures now that it no longer has a formal contract with the U.S. government?

It may be that the Obama administration expects to exert a steadying hand on ICANN in indirect or covert ways. Or here too it may have calculated that winning applause from other nations now is worth taking serious risks in the long run.

Mr. Rabkin is professor of law at George Mason University. Mr. Eisenach is an adjunct law professor at George Mason and chairman of Empiris LLC, which does consulting work for Verisign, an Internet registry.

from the Wall Street Journal, 2009-Sep-27, by L. Gordon Crovitz:

You Commit Three Felonies a Day
Laws have become too vague and the concept of intent has disappeared.

When we think about the pace of change in technology, it's usually to marvel at how computing power has become cheaper and faster or how many new digital ways we have to communicate. Unfortunately, this pace of change is increasingly clashing with some of the slower-moving parts of our culture.

Technology moves so quickly we can barely keep up, and our legal system moves so slowly it can't keep up with itself. By design, the law is built up over time by court decisions, statutes and regulations. Sometimes even criminal laws are left vague, to be defined case by case. Technology exacerbates the problem of laws so open and vague that they are hard to abide by, to the point that we have all become potential criminals.

Boston civil-liberties lawyer Harvey Silverglate calls his new book "Three Felonies a Day," referring to the number of crimes he estimates the average American now unwittingly commits because of vague laws. New technology adds its own complexity, making innocent activity potentially criminal.

Mr. Silverglate describes several cases in which prosecutors didn't understand or didn't want to understand technology. This problem is compounded by a trend that has accelerated since the 1980s for prosecutors to abandon the principle that there can't be a crime without criminal intent.

In 2001, a man named Bradford Councilman was charged in Massachusetts with violating the wiretap laws. He worked at a company that offered an online book-listing service and also acted as an Internet service provider to book dealers. As an ISP, the company routinely intercepted and copied emails as part of the process of shuttling them through the Web to recipients.

The federal wiretap laws, Mr. Silverglate writes, were "written before the dawn of the Internet, often amended, not always clear, and frequently lagging behind the whipcrack speed of technological change." Prosecutors chose to interpret the ISP role of momentarily copying messages as they made their way through the system as akin to impermissibly listening in on communications. The case went through several rounds of litigation, with no judge making the obvious point that this is how ISPs operate. After six years, a jury found Mr. Councilman not guilty.

Other misunderstandings of the Web criminalize the exercise of First Amendment rights. A Saudi student in Idaho was charged in 2003 with offering "material support" to terrorists. He had operated Web sites for a Muslim charity that focused on normal religious training, but was prosecuted on the theory that if a user followed enough links off his site, he would find violent, anti-American comments on other sites. The Internet is a series of links, so if there's liability for anything in an online chain, it would be hard to avoid prosecution.

Mr. Silverglate, a liberal who wrote a previous book taking the conservative position against political correctness on campuses, is a persistent, principled critic of overbroad statutes. This is a common problem in securities laws, which Congress leaves intentionally vague, encouraging regulators and prosecutors to try people even when the law is unclear. He reminds us of the long prosecution of Silicon Valley investment banker Frank Quattrone, which after five years resulted in a reversal of his criminal conviction on vague charges of obstruction of justice.

These miscarriages are avoidable. Under the English common law we inherited, a crime requires intent. This protection is disappearing in the U.S. As Mr. Silverglate writes, "Since the New Deal era, Congress has delegated to various administrative agencies the task of writing the regulations," even as "Congress has demonstrated a growing dysfunction in crafting legislation that can in fact be understood." Prosecutors identify defendants to go after instead of finding a law that was broken and figuring out who did it. Expect more such prosecutions as Washington adds regulations.

Sometimes legislators know when they make false distinctions based on technology. An "anti-cyberbullying" proposal is making its way through Congress, prompted by the tragic case of a 13-year-old girl driven to suicide by the mother of a neighbor posing as a teenage boy and posting abusive messages on MySpace. The law would prohibit using the Internet to "coerce, intimidate, harass, or cause substantial emotional distress to a person." Imagine a law that tried to apply this control of speech to letters, editorials or lobbying.

Mr. Silverglate, who will testify against the bill later this week, tells me he figures that "being emotionally distressed is just part of living in a free society." New technologies like the Web, he concludes, "scare legislators because they don't understand them and want to control them, even as they become a normal part of life."

In a complex world of new technologies, there is more need than ever for clear rules of the road. Americans should expect that a crime requires bad intent and also that Congress and prosecutors will try to create clarity, not uncertainty. Our legal system has a lot of catching up to do to work smoothly with the rest of our lives.

from the Wall Street Journal, 2009-Aug-28, by Hans A. von Spakovsky:

What's Wrong With 'Hillary: The Movie'?
Pornographers have more freedom today than those who want to engage in political speech.

Criticizing a candidate for public office can get you into a great deal of trouble in America these days. Just ask Citizens United, a conservative nonprofit that a D.C. district court ruled in violation of the McCain-Feingold campaign-finance law when it produced a critical, 90-minute documentary about Hillary Clinton during last year's presidential campaign.

The D.C. court ruled that "Hillary: The Movie" was a form of "express advocacy" and therefore, under the rules of McCain-Feingold, could not receive direct corporate funding (the law requires all corporate campaign contributions be made through political action committees). Citizens United appealed, arguing that a pay-for-view, 90-minute film on cable was not subject to the same restrictions as widely broadcast television ads.

Citizens United v. FEC is slated to come before the Supreme Court on Sept. 9. When it does, the Court will have an amicus brief filed by eight former Federal Election Committee (FEC) commissioners, including me, to consider. Together, we have nearly 75 years of combined experience interpreting the restrictions imposed on political activity by federal campaign-finance laws, implementing regulations, and investigating violations. It's clear to us that the D.C. court's decision should be overturned on First Amendment grounds and McCain-Feingold ruled unconstitutional.

This is not the first time we've made this argument. The eight of us filed an amicus brief urging the Supreme Court to overrule two of its prior decisions, Austin v. Michigan State Chamber of Commerce (1990) and McConnell v. FEC (2003). Austin held that corporations, including nonprofits, could be prohibited from making independent expenditures on political activity. McConnell, meanwhile, upheld the prohibition on corporate and labor union "electioneering communications." These were defined as any broadcast ads mentioning federal candidates near elections, even if the ads were about vital issues being voted on in Congress by incumbents who were also running for re-election.

The commissioners make the basic point that these prior decisions by the Supreme Court fundamentally violate the First Amendment and have chilled political speech. But we also argue, based on our extensive experience, that the law and its accompanying regulations are so complex and so confusing that ordinary citizens, and even specialists, have a hard time understanding what's legally permissible and what's not.

The Federal Election Campaign Act (FECA), passed in 1972, is 244 pages of restrictions and requirements. The regulations issued by the FEC are an additional 568 pages. The federal register is filled with 1,278 pages of explanations and justifications from the FEC for its regulations. The FEC has issued almost 1,800 advisory opinions since 1975, trying to explain to a confused regulated community the meaning of various provisions of FECA.

The law and the regulations are a Byzantine labyrinth that burden the ability to participate in political debate and federal elections. Former FEC Commissioner and Chairman David Mason said he spent 10 years wrestling with a law that "became ever more complex, more laden with exceptions, more difficult to apply, and less fair." Rather than crafting another exception, Mr. Mason urges the Supreme Court to "simply recognize the equal First Amendment rights of all speakers." Former FEC Chairman Bradley Smith said that the Supreme Court's prior decisions show that it simply does not "grasp the complexity of the law and the enormous practical burden it places on those who would speak about politics." As a result, Mr. Smith says, "Many don't speak at all, and our society is poorer for it."

As the commissioners remind the Supreme Court, the First Amendment could not be clearer: "Congress shall make no law . . . abridging the freedom of speech." Yet the Supreme Court in the Austin and McConnell cases explicitly approved just such abridgements.

Those cases have also spawned complex, multifactor tests applied by a government bureaucracy to restrict many entities and forms of speech. There are different rules for over 70 different entities, from corporations to partnerships, and the FEC has varying rules for 33 different forms of political speech. Those exceptions mean that while some corporations are prohibited from engaging in political speech, others are not. While General Motors is prohibited, General Electric, which owns NBC and MSNBC, is not because of the exception in the law for political speech by media corporations.

The proponents of these restrictions have completely lost sight of a basic truth: The answer to speech they disagree with is not to restrict that speech, but to answer it with more speech. And corporate speech—including that of nonprofit advocacy organizations like Citizens United or the NRA—is particularly important when members of Congress, as well as the president, have supported policies that would nationalize our health care and create government ownership and control of elements of our economy, including large segments of the financial and automobile industries.

If anyone understands the unworkability of federal campaign-finance laws and the restrictions they impose on fundamental political speech and activity, it's former commissioners who had to enforce the law. Sadly, pornographers in America today have greater freedom than those engaging in political speech.

It's high time the Supreme Court overturn the two badly reasoned prior decisions that led to this squalid result. As noted campaign-finance lawyer Jim Bopp, who drafted the amicus brief on behalf of the commissioners, has said, there is "profound wisdom" in the First Amendment's pristine statement that "Congress shall make no law" abridging freedom of speech. America needs to return to that first and most important principle.

Mr. von Spakovsky, a former commissioner on the Federal Election Commission, is a senior legal fellow at the Heritage Foundation.

from the Associated Press, 2009-Sep-21, by Ricardo Alonso-Zaldivar, with Bruce Schreiner in Louisville, Ky. contributing:

Gov't investigates health insurance company mailer

WASHINGTON – The government is investigating a major insurance company for allegedly trying to scare seniors with a mailer warning they could lose important benefits under health care legislation in Congress.

The Health and Human Services Department launched its investigation of Humana after getting a complaint from Sen. Max Baucus, D-Mont., a senior lawmaker usually viewed as a reliable ally of the insurance industry.

"It is wholly unacceptable for insurance companies to mislead seniors regarding any subject — particularly on a subject as important to them, and to the nation, as health care reform," Baucus said Monday, disclosing the HHS investigation.

Humana Inc., headquartered in Louisville, Ky., is cooperating with the investigation and stopped the mailer earlier this month, company spokesman Tom Noland said Monday.

The Senate committee that Baucus chairs — Finance — will vote this week on a sweeping health care plan that he's proposed to expand coverage and try to control costs. It would cut Medicare and Medicaid spending by about $500 billion over 10 years, but Baucus says that would lead to greater efficiency, not reduced benefits.

"The health care reform bill we released ... strengthens Medicare and does not cut benefits," said Baucus. "From lower prescription drug costs, to free preventive care, to better treatment for chronic conditions, seniors have so much to gain from health reform — and I'm not going to let insurance company profits stand in the way of improving Medicare for seniors."

Humana is one of the largest private carriers serving seniors under a program called Medicare Advantage. About one-fourth of the elderly and disabled people covered under Medicare participate in the Advantage program, which offers a choice of private plans that usually deliver added benefits.

Humana has about 1.4 million Medicare Advantage enrollees, and the program accounts for about half the company's revenue, Noland said.

Government experts say the private plans are being paid too much — about 14 percent more than it costs to care for seniors in traditional Medicare. The Baucus plan — and other proposals — would reduce payments to the plans, and the health insurance industry is fighting back.

The Humana mailer focused squarely on the Medicare Advantage program.

"While these programs need to be made more efficient, if the proposed funding cut levels become law, millions of seniors and disabled individuals could lose many of the important benefits and services that make Medicare Advantage health plans so valuable," it said.

It urged seniors to sign up with Humana for regular updates on the health care legislation, and encouraged them to contact their lawmakers in Washington.

In a warning letter to Humana, HHS said the government is concerned that the mailer "is misleading and confusing" partly because the company's lobbying campaign could be mistaken for an official communication about Medicare benefits.

HHS ordered the company to immediately halt any such mailings, and remove any related materials from its Web site. In the letter, the government also said it may take other action against Humana.

Although most prominent Democrats back a government-sponsored insurance plan to compete with private carriers, Baucus did not include one in his proposal because he doesn't think it can pass the Senate. During the Bush administration, he broke with his party to support a Medicare prescription drug benefit delivered through private insurance plans, with no government role in negotiating prices.

Insurers, however, are pushing back against his plan to revamp health care. Not only would it cut payments to private Medicare plans, but it would also impose a $6-billion annual fee on the industry, partly to recoup profits from an influx of new taxpayer-subsidized customers.

Humana opposes a government-run insurance option, arguing that it would "undermine the coverage that is working today for millions of Americans," Noland said.

Polls show that seniors are more skeptical of the health care overhaul than the U.S. population as a whole.

from the Wall Street Journal, 2009-Sep-22, p.A24:

Baucus Bludgeons Humana
A preview of coming political health-care attractions.

Political intimidation has always been part of the current Congress's health-care strategy: "If you're not at the table, you're on the menu" is tattooed on every lobbyist and industry rep in Washington. But Max Baucus's latest bullying tactics are hard to believe by even these standards, as the Senate Finance Chairman has sicced federal regulators on the insurer Humana Inc. for daring to criticize one part of his health bill.

Earlier this month, Humana sent a one-page letter to its customers enrolled in its Medicare Advantage plans, which offer private options to Medicare beneficiaries. Humana noted that, because of spending cuts proposed by Democrats, "millions of seniors and disabled individuals could lose many of the important benefits and services that make Medicare Advantage health plans so valuable." The Kentucky-based company also urged its customers to contact their Representatives. Pretty tame stuff, as these things go.

Mr. Baucus took it as a declaration of war. He complained to the Centers for Medicare and Medicaid Services, the federal health-care agency, which on Friday duly ordered Humana to cease and desist. CMS claimed the mailer was "misleading and confusing" and told the company it has opened an official probe as to whether the mailer violated laws about how the insurers that manage Advantage plans are allowed to communicate with their customers, as well as other federal statutes.

"Please be advised that we take this matter very seriously and, based upon the findings our investigation, will pursue compliance and enforcement actions," CMS concluded, ominously. Humana could be fined or booted from Medicare Advantage altogether.

"It is wholly inappropriate for insurance companies to mislead seniors regarding any subject—particularly on a subject as important to them, and to the nation, as health-care reform," Mr. Baucus said in a statement yesterday, playing the role of Congressional censor. "The health-care reform bill we released last week strengthens Medicare and does not cut benefits covered under the Medicare program—and seniors need to know that."

In fact, the Baucus draft legislation slashes $123 billion over the next decade from Medicare Advantage, which Democrats hate despite the fact that almost one-fourth of beneficiaries have chosen it over traditional fee-for-service Medicare. One reason seniors like it is because private insurers focus on quality and preventive care and try to manage benefits, as opposed to simply paying bills.

A new study from America's Health Insurance Plans, the industry trade group, finds that seniors on Advantage in California spent 30% fewer days in hospitals over fee-for-service patients, based on federal data. Democrats say that insurers are "overpaid," but the cuts—as Humana correctly noted—mean that seniors may lose this coverage.

Mr. Baucus doesn't want seniors to be educated about these facts, and obviously he's willing to use his enormous power to punish any private company that doesn't affirm his, well, creative version of reality. Nearly half of Humana's yearly revenue comes from Medicare Advantage, and the insurer says that it is complying in full with the CMS investigation. Yesterday, the agency also barred all Advantage insurers from providing similar information to their beneficiaries.

This episode neatly shows how all U.S. health care will operate if Mr. Baucus's bill becomes law. For months Humana and the wider insurance lobby have been among ObamaCare's most prominent cheerleaders, with the exception of Advantage cuts and the public option—even though they'll be converted into government contractors in the business of fulfilling whatever Congress happens to dictate. The insurers are willing to give up their remaining business autonomy because Democrats intend to mandate that all consumers buy their products—but as with Advantage now, that means government will control the funds upon which the insurers' survival depends. They'll have no choice but to genuflect, or else the political class will pull out the tire irons.

Humana merely made the mistake of trying to tell seniors the truth about what will happen to their coverage, and now CEO Michael McCallister had better hire a good team of lawyers. Mr. Baucus and the Obama Administration are out to make him an object lesson to the rest of the business class, and that means they won't stop until Humana cries uncle or is ruined.

from the Wall Street Journal, 2009-Sep-24, p.A20:

Medicare and Gag Orders
Humana gets whacked for telling the truth, AARP gets a pass for spreading falsehoods.

Maybe Senate Finance Chairman Max Baucus should put a gag order on Douglas Elmendorf too. On Tuesday, the Congressional Budget Office director told Mr. Baucus's committee that its plan to cut $123 billion from Medicare Advantage—the program that gives almost one-fourth of seniors private health-insurance options—will result in lower benefits and some 2.7 million people losing this coverage.

Imagine that. Last week Mr. Baucus ordered Medicare regulators to investigate and likely punish Humana Inc. for trying to educate enrollees in its Advantage plans about precisely this fact. Jonathan Blum, acting director of a regulatory office in the Centers for Medicare and Medicaid Services (CMS), said that a mailer Humana sent its customers was "misleading and confusing to beneficiaries, who may believe that it represents official communication about the Medicare Advantage program."

Mr. Blum has also banned all Advantage contractors from telling their customers what Mr. Elmendorf has just told Congress. Mr. Blum happens to be a former senior aide to Mr. Baucus and a health adviser on the Obama transition team.

Meanwhile, we have the case of the Association for the Advancement of Retired Persons (AARP), and its fanciful Medicare claims. The self-styled seniors lobby is using all its money and influence to cheer on ObamaCare, even though polls show that most retired persons oppose it. AARP has spent millions of dollars on its TV ad campaign and bulletins and newsletters to its members, including eight million direct-mail letters over Labor Day. The AARP Web site claims that it is a "myth" that "health care reform will hurt Medicare," while it is a "fact" that "none of the health care reform proposals being considered by Congress will cut Medicare benefits or increase your out-of-pocket costs."

So why hasn't AARP also come under CMS scrutiny? Could that be because AARP, which markets its own branded Advantage plans with United HealthCare that have 1.7 million enrollees, is a reliable liberal ally? Certainly its claims are "misleading and confusing"—given that in this instance it is empirically untrue, unlike Humana's attempt at edification. Seniors might even think AARP's falsehoods represent official communication about the Medicare Advantage program. But don't expect Mr. Baucus or CMS to impose its gag rule on the AARP's pro-ObamaCare advocacy.

We don't think AARP should be muzzled in a political debate, but neither should the insurance industry—especially by an influential Senator getting favors from his crony in a supposedly impartial regulatory agency that has enormous power to harm or destroy private companies. Seniors have a right to know how they may be affected by Washington's health-care planning.

So, for the record, CBO's Mr. Elmendorf says that cuts to Medicare Advantage "could lead many plans to limit the benefits they offer, raise their premiums, or withdraw from the program."

from the Wall Street Journal, 2009-Oct-18:

Gag Order Admission
Humana gets a slap on the wrist for disseminating true information.

There's nothing like a Friday evening news release to hide a Washington embarrassment. In last week's episode, President Obama's health appointees lifted their outrageous gag order against health insurers for the sin of informing their customers about how ObamaCare would affect their insurance.

In September, Humana Inc. sent a mailer to some 900,000 enrollees in its Medicare Advantage plans, the program that gives seniors a choice of private insurance options, warning that spending cuts would result in reduced benefits and some people losing their coverage. The Congressional Budget Office has said the same thing, but the Obama apparat went nuclear. At the behest of Senate Finance Chairman Max Baucus, Medicare's administrators menaced Humana with fines and regulatory punishments, and even told all insurers participating in Advantage to shut up too—or else.

In its Friday ruling, Medicare slapped Humana on the wrist for disseminating information that it claimed was "misleading to beneficiaries"—even though it was perfectly true—but also lifted the gag order. Insurers will be allowed to communicate with enrollees, provided they get permission. This is basically a concession that the critics are right, especially considering that Health and Human Services Secretary Kathleen Sebelius defended the policy as recently as two weeks ago while refusing to answer questions about this raw political coercion from a supposedly impartial federal bureaucracy.

Meanwhile, the Administration is now threatening to strip the insurance industry of its decades-long exemption from antitrust law. This would blow a hole in the industry's profitability, as would ObamaCare for different reasons. The industry now faces a choice of playing ball with Democrats and getting punished, or trying to defeat the bill and being brutalized as an act of political revenge. This is the industry's reward for spending millions to promote "reform" in the hopes of not becoming a political target. It's still a target, and now it's poised to lose the policy fight too.

from the Wall Street Journal, 2009-Oct-3, p.A12:

Google Exceptionalism
Net neutrality mandates make regulation inevitable.

So it turns out that Google's enthusiasm for government-imposed "net neutrality" is qualified. The Internet giant wants cumbersome network management rules applied to everyone—except Google.

Google is one of the industry's most vocal advocates of regulating Internet service providers. It wants to prevent companies like Verizon and AT&T from managing their broadband networks in a way that is optimal for most users, but perhaps not for Google. In order to protect its business model, which involves the use of Internet pipes owned by these other companies (and potential competitors), Google wants broadband networks open to all content without restrictions, even if that means a relatively small number of video streamers and other bandwidth hogs could cause congestion for everyone else.

"Just as telephone companies are not permitted to tell consumers who they can call or what they can say," explains Google on its Web site, "broadband carriers should not be allowed to use their market power to control activity online."

Of late, however, Google is flouting its own net neutrality principles. According to recent media reports, Google Voice, the company's new phone service, is systematically blocking calls to phone numbers in some rural areas. Under so-called intercarrier compensation regulations, phone companies pay high fees to rural operators to connect phone calls. By blocking calls that its competitors are forced by law to connect, Google is saving money. It's also violating the nondiscrimination principle that underlies its net neutrality lobbying.

Citing these news reports, AT&T engaged in a little payback late last week by sending a letter to the Federal Communications Commission calling on regulators to force Google to "play by the same rules as its competitors." Google says that Google Voice is not a traditional phone company and should not be regulated as such. The reality is that Google wants to gain a competitive advantage by providing phone service without having to adhere to the same rules as its rivals.

Our own view is that the rules requiring traditional phone companies to connect these calls should be scrapped for everyone rather than extended to Google. In today's telecom marketplace, where the overwhelming majority of phone customers have multiple carriers to choose from, these regulations are obsolete. But Google has set itself up for this political blowback.

Last week FCC Chairman Julius Genachowski proposed new rules for regulating Internet operators and gave assurances that "this is not about government regulation of the Internet." But this dispute highlights the regulatory creep that net neutrality mandates make inevitable. Content providers like Google want to dabble in the phone business, while the phone companies want to sell services and applications.

The coming convergence will make it increasingly difficult to distinguish among providers of broadband pipes, network services and applications. Once net neutrality is unleashed, it's hard to see how anything connected with the Internet will be safe from regulation.

from TheInquirer.net, 2009-Sep-16, by Nick Farrell:

France surrenders to the music and film industries
Fighting for the right to give up

THE FRENCH GOVERNMENT is falling all over itself to surrender to the music and film industries and disconnect its citizens from the Internet without trial.

The first attempt the French had at negotiating a total capitulation was when it brought in a law saying that if people were caught filesharing three times they would never be allowed an Internet connection ever again.

Imagine the government's horror when the law was constitutionally challenged. It turned out that being garlic-breathed cheese eating surrender monkeys was not actually part of the French Constitution after all and that was just a stereotype invented by roast beef eating Brits who watched too much Red Dwarf.

So then French President Nicolas Sarkozy ordered his crack team of legal eagles to find another way to surrender. Sarkozy likes to hob-nob with movie stars so he has to show the big entertainment businesses he is their friend or he will be off the guest list for some of its bigger events.

The French legislature yesterday passed into law a second version of the ultra-controversial HADOPI "three strikes" law that targets illegal online peer-to-peer file-swappers.

The revised proposal aims to deal with the concerns of the legal sages who sit on France's Constitutional Council, who had objected to the first version of the law.

Now Internet disconnections of up to a year can be ordered by a single judge in a "streamlined" proceeding, while Internet users who fail to "secure" their connections can also be punished if other people use those connections to illegally exchange copyrighted material.

HADOPI 2 was passed by the National Assembly today by a margin of 285-225. The Senate has already passed the legislation.

La Quadrature du Net, a French digital rights group, continues to protest the changes. It says that the new judicial procedure is properly restricted to only a few categories of simple litigation such as traffic regulation.

It fails to guarantee the right to a fair trial. It does not include any contradictory debate or public hearing. The ruling is made without any prior judicial investigation.

It also outlaws the "open WiFi defense", under which an accused file-sharer could simply make clear that anyone could have used his or her Internet connection. Under the new law, all Internet users must keep their broadband connections "secure" and are fully responsible for whatever happens over them.

This is one of the clauses that the French government has not thought out particularly well. While it does close the loophole it does expose its cronies in the business world to litigation. If a war chalker downloads a film from the carpark of a big French company, it will be the big company that will have its Internet connection switched off. No Internet would mean that the big French company would be less likely to pay huge amounts of cash to get Nicolas Sarkozy re-elected again.

It is likely that this law will also be appealed on constitutional grounds. If Sarkozy has finally gotten the legal balance right he will be allowed to surrender and watch his citizens drop off the Internet while he and his nice wife sip cocktails with movie stars at Cannes.

from TheInquirer.net, 2009-Oct-9:

Sarkozy busted with 400 'pirated' DVDs
Conference handout plans go awry

IT WOULD APPEAR that French President Nicolas Sarkozy has been caught out with 400 illegally copied DVDs - of a documentary about himself.

According to the French paper Le Canard Enchaine (The Chained Duck), the president rather fancied himself in a documentary called 'A visage decouvert : Nicolas Sarkozy', done by Galaxie Presse, and wanted to give copies of it to fellow diplomats attending a conference.

But things went agley when the distributor sent him only 50 copies, not enough to go around.

In atypical French fashion, Sarkozy refused to surrender and instead enlisted the help of the presidential AV club, the Service audiovisuel de la presidence de la Republique, to burn off a few hundred copies for him to dish out.

Unfortunately it slipped his mind to get permission from the publisher first.

In true DVD pirate manner they apparently even rejigged the cover, removing the studio's logo and replacing it with their own, but stopped short of photoshopping Sarkozy's head onto the bare chested torso of Vladimir Putin.

For his sake, we hope Sarkozy's own three-strikes policy for illegal filesharing of copyrighted works is applied per case rather than per disc.

from the Washington Examiner, 2009-Aug-30, by Susan Ferrechio:

Reid Wants his local paper to fold

Senate Majority Leader Harry Reid, D-Nev., could be facing one of the toughest re-election battles of his career and while he has pronounced himself ready and eager for the fight, there is evidence the pressure might be getting to him.

Reid last week fully antagonized the Las Vegas Review-Journal Newspaper, which has been critical of him, by reportedly telling its advertising director "I hope you go out of business" while the two shook hands at a Chamber of Commerce event.

Reid then delivered a speech to the Chamber in which he joked that he hopes the Review-Journal can continue to sell advertising because the paper also provides delivery of the Las Vegas Sun, which is more friendly to Reid.

Reid has been suffering from low poll numbers for months, but the most recent survey was particularly devastating, showing the Searchlight native to be trailing two prospective Republican opponents, former University of Las Vegas basketball player Danny Tarkanian and state GOP chairwoman Sue Lowden by 11 points and 5 points, respectively.

Protesters holding "Dump Reid" signs stood outside the Chamber event, according to reporting in the Sun.

The Review-Journal on Sunday called Reid's comments "a full-on threat perpetrated by a bully who has forgotten that he was elected to office to protect Nevadans, not sound like he's shaking them down" and said it was serving Reid notice "that this creepy tactic will not be tolerated."

While Reid may perceive the paper's treatment of him unfair, it employs more than 100 people. The unemployment rate in Las Vegas, meanwhile, jumped this month to more than 13 percent, according to the Sun.

from the New York Times, 2009-Jul-17, by Brad Stone:

Amazon Erases Orwell Books From Kindle

In George Orwell's “1984,” government censors erase all traces of news articles embarrassing to Big Brother by sending them down an incineration chute called the “memory hole.”

On Friday, it was “1984” and another Orwell book, “Animal Farm,” that were dropped down the memory hole — by Amazon.com.

In a move that angered customers and generated waves of online pique, Amazon remotely deleted some digital editions of the books from the Kindle devices of readers who had bought them.

An Amazon spokesman, Drew Herdener, said in an e-mail message that the books were added to the Kindle store by a company that did not have rights to them, using a self-service function. “When we were notified of this by the rights holder, we removed the illegal copies from our systems and from customers' devices, and refunded customers,” he said.

Amazon effectively acknowledged that the deletions were a bad idea. “We are changing our systems so that in the future we will not remove books from customers' devices in these circumstances,” Mr. Herdener said.

Customers whose books were deleted indicated that MobileReference, a digital publisher, had sold them. An e-mail message to SoundTells, the company that owns MobileReference, was not immediately returned.

Digital books bought for the Kindle are sent to it over a wireless network. Amazon can also use that network to synchronize electronic books between devices — and apparently to make them vanish.

An authorized digital edition of “1984” from its American publisher, Houghton Mifflin Harcourt, was still available on the Kindle store Friday night, but there was no such version of “Animal Farm.”

People who bought the rescinded editions of the books reacted with indignation, while acknowledging the literary ironies involved. “Of all the books to recall,” said Charles Slater, an executive with a sheet-music retailer in Philadelphia, who bought the digital edition of “1984” for 99 cents last month. “I never imagined that Amazon actually had the right, the authority or even the ability to delete something that I had already purchased.”

Antoine Bruguier, an engineer in Silicon Valley, said he had noticed that his digital copy of “1984” appeared to be a scan of a paper edition of the book. “If this Kindle breaks, I won't buy a new one, that's for sure,” he said.

Amazon appears to have deleted other purchased e-books from Kindles recently. Customers commenting on Web forums reported the disappearance of digital editions of the Harry Potter books and the novels of Ayn Rand over similar issues.

Amazon's published terms of service agreement for the Kindle does not appear to give the company the right to delete purchases after they have been made. It says Amazon grants customers the right to keep a “permanent copy of the applicable digital content.”

Retailers of physical goods cannot, of course, force their way into a customer's home to take back a purchase, no matter how bootlegged it turns out to be. Yet Amazon appears to maintain a unique tether to the digital content it sells for the Kindle.

“It illustrates how few rights you have when you buy an e-book from Amazon,” said Bruce Schneier, chief security technology officer for British Telecom and an expert on computer security and commerce. “As a Kindle owner, I'm frustrated. I can't lend people books and I can't sell books that I've already read, and now it turns out that I can't even count on still having my books tomorrow.”

Justin Gawronski, a 17-year-old from the Detroit area, was reading “1984” on his Kindle for a summer assignment and lost all his notes and annotations when the file vanished. “They didn't just take a book back, they stole my work,” he said.

On the Internet, of course, there is no such thing as a memory hole. While the copyright on “1984” will not expire until 2044 in the United States, it has already expired in other countries, including Canada, Australia and Russia. Web sites in those countries offer digital copies of the book free to all comers.

from the Wall Street Journal, 2009-Jul-13, by Bert Gall and Steve Simpson:

The Media and the First Amendment
The Washington Post scandal is really about double standards.

Our nation's capital is abuzz over the Washington Post's recent indiscretion. The newspaper planned to host a now-canceled salon at the home of Katharine Weymouth, the Post's publisher. For $25,000, lobbyists and corporate executives would be granted exclusive access to members of the Obama administration, Congress, and Post journalists.

Pundits have condemned the Post for acting as an influence peddler. But other news publications routinely host similar events. This shouldn't come as a shock. Media corporations have always had the privilege of influencing politics without the restrictions -- like campaign finance laws -- that other corporations face.

So while this episode has been treated as a scandal of journalistic ethics, it is really about double standards. When other business corporations attempt to influence politics -- by running political ads during elections -- editorial boards rush to condemn the corporations for "buying" elections or "unduly" influencing candidates. We should be concerned, the boards say, because those corporations have too much influence over the political debate. The public needs strict campaign finance laws to protect it from that influence.

The New York Times recently featured an editorial about the Supreme Court's current major campaign finance case, Citizens United v. Federal Election Commission (2009). The editorial counseled the high court against overturning precedent, referring to Austin v. Michigan Chamber of Commerce (1990). That case allows the government to prevent corporations from spending money on electoral advocacy. According to the Times, eliminating the government's power to ban corporate political speech "would be a disaster for democracy."

But if excessive influence is a reason to censor the speech of every other kind of corporation, then it is also a reason to censor the speech of media corporations. After all, the media spend millions of dollars each year on news stories about candidates and editorials endorsing them. This press is worth a lot. For example, the Washington Post's endorsement of Creigh Deeds is widely credited as the biggest factor in his rise from obscurity to victory in Virginia's Democratic gubernatorial primary this year.

So where are the editorials calling for limits on the amounts of "money" -- in the form of coverage and editorials -- media companies devote to candidates?

Of course, you'll hear no such thing from the nation's newspapers and media outlets. Media companies are exempt from campaign finance laws. Many in the press think that the First Amendment entitles them to special protections that don't apply to anyone else.

This is wrong. The Supreme Court has repeatedly made clear that the media's right to free speech is no greater than anyone else's. And in Austin and other campaign finance cases, the Supreme Court noted that the media's exemption from campaign finance laws was discretionary, not mandatory.

In short, the press's favored status is only as strong as Congress says it is, at least under current First Amendment jurisprudence. If, in the wake of the Post scandal, the public begins to believe that media companies are as corrupt as the press claims other corporations are, Congress's view on the matter could change. Alternatively, Congress may come up with some other reason to start limiting the freedom of the press. Congress is currently considering a bill that would throw struggling newspapers an economic lifeline by allowing them to operate as nonprofits -- thereby making their advertising and subscription revenue tax-exempt. The catch? Newspapers that take the deal would no longer be able to endorse political candidates.

This precarious position -- free speech at Congress's discretion -- is not exactly a recipe for a strong and independent press. It's tempting to think that media companies that have called for limits on everyone else's speech will ultimately get what they deserve when Congress gets around to censoring theirs. But that would be a mistake.

The press remains one of the most important bulwarks against tyranny. The solution is to protect free speech on principle, regardless of the identity of the speaker. Banning a corporation from spending its own money for political advocacy is censorship, plain and simple. The sooner the press understands this, the safer its rights -- and ours -- will be.

Messrs. Gall and Simpson are senior attorneys at the Institute for Justice.

from the Volokh Conspiracy, 2009-Apr-30, by Eugene Volokh:

Federal Felony To Use Blogs, the Web, Etc. To Cause Substantial Emotional Distress Through "Severe, Repeated, and Hostile" Speech?

That's what a House of Representatives bill, proposed by Rep. Linda T. Sanchez and 14 others, would do. Here's the relevant text:

Whoever transmits in interstate or foreign commerce any communication, with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person, using electronic means to support severe, repeated, and hostile behavior, shall be fined under this title or imprisoned not more than two years, or both....

["Communication"] means the electronic transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received; ...

["Electronic means"] means any equipment dependent on electrical power to access an information service, including email, instant messaging, blogs, websites, telephones, and text messages.

1. I try to coerce a politician into voting a particular way, by repeatedly blogging (using a hostile tone) about what a hypocrite / campaign promise breaker / fool / etc. he would be if he voted the other way. I am transmitting in interstate commerce a communication with the intent to coerce using electronic means (a blog) "to support severe, repeated, and hostile behavior" -- unless, of course, my statements aren't seen as "severe," a term that is entirely undefined and unclear. Result: I am a felon, unless somehow my "behavior" isn't "severe."

2. A newspaper reporter or editorialist tries to do the same, in columns that are posted on the newspaper's Web site. Result: Felony, unless somehow my "behavior" isn't severe.

3. The politician votes the wrong way. I think that's an evil, tyrannical vote, so I repeatedly and harshly condemn the politician on my blog, hoping that he'll get very upset (and rightly so, since I think he deserves to feel ashamed of himself, and loathed by others). I am transmitting a communication with the the intent to cause substantial emotional distress, using electronic means (a blog) "to support severe, repeated, and hostile behavior." (I might also be said to be intending to "harass" -- who knows, given how vague the term is? -- but the result is the same even if we set that aside.) Result: I am a felon, subject to the usual utter uncertainty about what "severe" means.

4. A company delivers me shoddy goods, and refuses to refund my money. I e-mail it several times, threatening to sue if they don't give me a refund, and I use "hostile" language. I am transmitting a communication with the intent to coerce, using electronic means "to support severe, repeated, and hostile behavior." Result: I am a felon, if my behavior is "severe."

5. Several people use blogs or Web-based newspaper articles to organize a boycott of a company, hoping to get it to change some policy they disapprove of. They are transmitting communications with the intent to coerce, using electronic means "to support severe, repeated, and hostile behavior." Result: Those people are a felon. (Isn't threatening a company with possible massive losses "severe"? But again, who knows?)

6. John cheats on Mary. Mary wants John to feel like the scumbag that he is, so she sends him two hostile messages telling him how much he's hurt her, how much she now hates him, and how bad he should feel. She doesn't threaten him with violence (there are separate laws barring that, and this law would apply even in the absence of a threat). She is transmitting communications with the intent to cause substantial emotional distress, using electronic means "to support severe, repeated, and hostile behavior." Result: Mary is a felon, again if her behavior is "severe."

The examples could be multiplied pretty much indefinitely. The law, if enacted, would clearly be facially overbroad (and probably unconstitutionally vague), and would thus be struck down on its face under the First Amendment. But beyond that, surely even the law's supporters don't really want to cover all this speech.

What are Rep. Linda Sanchez and the others thinking here? Are they just taking the view that "criminalize it all, let the prosecutors sort it out"? Even if that's so, won't their work amount to nothing, if the law is struck down as facially overbroad -- as I'm pretty certain it would be? Or are they just trying to score political points here with their constituents, with little regard to whether the law will actually do any good? I try to focus my posts mostly on what people do, not on their motives, but here the drafting is so shoddy that I just wonder why this happened.

from the Washington Post, 2009-Apr-12, p.B3, by Jonathan Turley:

The Free World Bars Free Speech

For years, the Western world has listened aghast to stories out of Iran, Saudi Arabia and other Middle Eastern nations of citizens being imprisoned or executed for questioning or offending Islam. Even the most seemingly minor infractions elicit draconian punishments. Late last year, two Afghan journalists were sentenced to prison for blasphemy because they translated the Koran into a Farsi dialect that Afghans can read. In Jordan, a poet was arrested for incorporating Koranic verses into his work. And last week, an Egyptian court banned a magazine for running a similar poem.

But now an equally troubling trend is developing in the West. Ever since 2006, when Muslims worldwide rioted over newspaper cartoons picturing the prophet Muhammad, Western countries, too, have been prosecuting more individuals for criticizing religion. The "Free World," it appears, may be losing faith in free speech.

Among the new blasphemers is legendary French actress Brigitte Bardot, who was convicted last June of "inciting religious hatred" for a letter she wrote in 2006 to then-Interior Minister Nicolas Sarkozy, saying that Muslims were ruining France. It was her fourth criminal citation for expressing intolerant views of Muslims and homosexuals. Other Western countries, including Canada and Britain, are also cracking down on religious critics.

Emblematic of the assault is the effort to pass an international ban on religious defamation supported by United Nations General Assembly President Miguel d'Escoto Brockmann. Brockmann is a suspended Roman Catholic priest who served as Nicaragua's foreign minister in the 1980s under the Sandinista regime, the socialist government that had a penchant for crushing civil liberties before it was tossed out of power in 1990. Since then, Brockmann has literally embraced such free-speech-loving figures as Iranian President Mahmoud Ahmadinejad, whom he wrapped in a bear hug at the U.N. last year.

The U.N. resolution, which has been introduced for the past couple of years, is backed by countries such as Saudi Arabia, one of the most repressive nations when it comes to the free exercise of religion. Blasphemers there are frequently executed. Most recently, the government arrested author Hamoud Bin Saleh simply for writing about his conversion to Christianity.

While it hasn't gone so far as to support the U.N. resolution, the West is prosecuting "religious hatred" cases under anti-discrimination and hate-crime laws. British citizens can be arrested and prosecuted under the 2006 Racial and Religious Hatred Act, which makes it a crime to "abuse" religion. In 2008, a 15-year-old boy was arrested for holding up a sign reading "Scientology is not a religion, it is a dangerous cult" outside the organization's London headquarters. Earlier this year, the British police issued a public warning that insulting Scientology would now be treated as a crime.

No question, the subjects of such prosecutions are often anti-religious -- especially anti-Muslim -- and intolerant. Consider far-right Austrian legislator Susanne Winter. She recently denounced Mohammad as a pedophile for his marriage to 6-year-old Aisha, which was consummated when she was 9. Winter also suggested that Muslim men should commit bestiality rather than have sex with children. Under an Austrian law criminalizing "degradation of religious doctrines," the 51-year-old politician was sentenced in January to a fine of 24,000 euros ($31,000) and a three-month suspended prison term.

But it is the speech, not the speaker, that's at issue. As insulting and misinformed as views like Winter's may be, free speech is not limited to non-offensive subjects. The purpose of free speech is to be able to challenge widely held views.

Yet there is a stream of cases similar to Winter's coming out of various countries:

In May 2008, Dutch prosecutors arrested cartoonist Gregorius Nekschot for insulting Christians and Muslims with a cartoon that caricatured a Christian fundamentalist and a Muslim fundamentalist as zombies who meet at an anti-gay rally and want to marry.

Last September, Italian prosecutors launched an investigation of comedian Sabina Guzzanti for joking about Pope Benedict VXI. "In 20 years, [he] will be dead and will end up in hell, tormented by queer demons, and very active ones," she said at a rally.

In February, Rowan Laxton, an aide to British Foreign Secretary David Miliband, was arrested for "inciting religious hatred" when, watching news reports of Israel's bombardment of Gaza while exercising at his gym, he allegedly shouted obscenities about Israelis and Jews at the television.

Also in February, Britain barred controversial Dutch politician Geert Wilders from entry because of his film "Fitna," which describes the Koran as a "fascist" book and Islam as a violent religion. Wilders was declared a "threat to public policy, public security or public health."

And in India, authorities arrested the editor and publisher of the newspaper the Statesman for running an article by British journalist Johann Hari in which he wrote, "I don't respect the idea that we should follow a 'Prophet' who at the age of 53 had sex with a 9-year-old girl, and ordered the murder of whole villages of Jews because they wouldn't follow him." In India, it is a crime to "outrage religious feelings."

History has shown that once governments begin to police speech, they find ever more of it to combat. Countries such as Canada, England and France have prosecuted speakers and journalists for criticizing homosexuals and other groups. It's the ultimate irony: free speech curtailed for the sake of a pluralistic society.

Even countries that the United States has helped liberate have joined the assault on free speech, rejecting the core values of our First Amendment. Afghan journalist Sayed Perwiz Kambakhsh was sentenced to death under Sharia law last year just for downloading Internet material on the role of women in Islamic societies that authorities judged to be blasphemous. The provincial deputy attorney general, Hafizullah Khaliqyar, has been quoted as saying: "Journalists are supporting Kambakhsh. I will arrest any journalist trying to support him after this."

Not only does this trend threaten free speech, freedom of association and a free press, it even undermines free exercise of religion. Challenging the beliefs of other faiths can be part of that exercise. Countries such as Saudi Arabia don't prosecute blasphemers to protect the exercise of all religions but to protect one religion.

Religious orthodoxy has always lived in tension with free speech. Yet Western ideals are based on the premise that free speech contains its own protection: Good speech ultimately prevails over bad. There's no blasphemy among free nations, only orthodoxy and those who seek to challenge it.

After years of international scorn, the United States can claim the high ground by supporting the right of all to speak openly about religion. Otherwise, free speech in the West could die with hope of little more than a requiem Mass.

Jonathan Turley is a law professor at George Washington University.

from the Telegraph of London, 2009-May-11, by Boris Johnson:

Michael Savage poses no risk to British security so why won't MPs say so?
It is shocking that not a single MP has stood up to defend free speech, says Boris Johnson.

About 10 years ago my brother-in-law was giving me a lift through the early morning Washington traffic when he suddenly gave a whoop of joy. "It's Howie!" yelled Ivo, turning up the radio. "We gotta listen to Howie!" And it was with mounting disbelief that I listened to the next 20 minutes of the Howard Stern show, a shameless and cynical attempt to scandalise the ear.

That morning Howard was appealing to his listeners to ring in with the most tear-jerking hard-luck story. In return he was offering a nude massage at the hands of an attractive nude masseuse. In a display of Oprah Winfreyesque exhibitionism, the audience was competing for that massage. We heard of divorces, and bereavements, and embarrassing disfigurements. But the winner (I advise sensitive readers to faint now) was a man who rang in to say that he had just been diagnosed with cancer, and might lose his gonads, but had not yet had the courage to tell his girlfriend.

Howard Stern pounced. "What's her number?" he said. With lightning efficiency his producers patched the caller through to his girlfriend, and soon she was being told – live on air – that there was good news and bad news.

The bad news was that her boyfriend had cancer, and the good news was that he was the winner of a nude massage. The poor woman gasped and sobbed. I sat there in exactly the state desired by the producers of the Howard Stern show – appalled, disgusted, but also thrilled by the horror of what was apparently (and I stress apparently) taking place on the radio.

We just don't have shows like this in Britain, I said to Ivo. That's right, he said, and he told me about the shock jocks. He explained the tactics of men such as Stern and Rush Limbaugh, how they shamelessly chased after ratings by causing outrage, how they goosed the secret prejudices of their listeners. Some people tuned in because they actually agreed with what was being said. Most people just enjoyed the theatre, the vehemence, the provocation.

These shock jocks were national institutions, with millions of weekly listeners. They were a new and important part of the American constitution, and that is my first objection to the utterly demented decision by Jacqui Smith's Home Office to announce that Michael Savage, America's third most popular radio show host, is banned from entering this country. It just makes us look so infantile, so pathetic.

Every day the American airwaves are churned by the paranoid rantings of Michael Savage and his kind. Has this stuff warped America, or deformed its political psyche? On the contrary, the Americans have just had the good sense to elect a supremely gifted and eloquent black man – when the prospect of a black British prime minister still seems some way off. What are we, some sort of kindergarten that needs to be protected against these dangerous American radio shows? Does Jacqui Smith think we are all dimwits, who can't tell when a man like Savage is talking rubbish? Why can America take it, and we can't?

The answer is that America still has a constitutional protection of free speech, and I have been amazed, over the last few days, to see how few people in this country are willing to stick up for that elementary principle. Across Fleet Street, swords have stuck in their scabbards, swords that normally leap to the defence of liberty.

I am not aware that a single MP has spoken on this subject, apart from David Winnick, who went on Newsnight to agree with Jacqui Smith. Harold Wilson once called Mr Winnick "the stupidest man in the House of Commons", a reputation he did nothing to shake with his performance. Mr Winnick said that Savage should be banned from this country for claiming that many children with autism were "brats". That is indeed an odious and ill-informed opinion. But surely it should be blindingly obvious even to David Winnick that it is possible to despise the things that Michael Savage says, and yet to think that it is very odd indeed to bar him from this country.

Such is the terror of being associated with Mr Savage's ugly ravings, that no one dares speak up for common sense and proportionality. To exclude someone from entering this country is a serious act of state. We have not been told how the decision was taken. We do not know which criteria were applied.

All we can say for certain is that there was no attempt to consult our elected representatives in the House of Commons, engrossed as they now are in defending their expenses, and it looks very much as though the list of banned persons was rushed out to cover up the hoo-ha over the Home Secretary's taxpayer-funded bath plug.

Michael Savage has said ignorant and unpleasant things about gay people, autism and Muslims. But it is far from clear that he would be in breach of any law, even in this country. The world is full of loudmouth media berks with views that we would all like to keep to themselves, but we can't ban them all from entering Britain.

Perhaps Jacqui Smith thinks that it "sends out a signal" about the kind of Britain we want. On the contrary, it reinforces a culture – created by this Labour Government, and its addiction to political correctness – where people are increasingly confused and panic-stricken about what they can say and what is forbidden, a culture where a police officer can seriously think he is right to arrest a protester for calling a police horse "gay". Our courts and tribunals are clogged with people claiming to have suffered insults of one kind or another, and a country once famous for free speech is now hysterically and expensively sensitive to anything that could be taken as a slight.

The final absurdity of the Home Office ban is that huge numbers of British people have now listened to or watched Mr Savage, when they might otherwise have rubbed along without even knowing he existed. They will have found a boorish, excitable man who addresses his callers as "moron", who is much less gifted than Howard Stern and who is certainly no threat to this country.

[Boris Johnson is the mayor of London. -AMPP Ed.]

from the Washington Post, 2009-May-6, by Karla Adam:

Britain Bans 16 for 'Fostering Extremism'
Radio Host Savage Among 6 Americans

LONDON, May 5 -- The British government on Tuesday named 16 people who have been banned from entering Britain for "fostering extremism or hatred," including Muslim extremists, a former Ku Klux Klan grand wizard, a U.S. radio talk show host and a Kansas preacher.

Home Secretary Jacqui Smith, who is responsible for domestic security, said she decided to make the names public to show the kind of behavior that Britain is "not willing to have in this country."

The list includes six Americans. Perhaps the most prominent is Michael Savage, a nationally syndicated conservative radio host who has made controversial remarks about immigrants and Muslims, such as urging Americans to "burn the Mexican flag on your street corner" and saying that "when I see a woman walking around with a burqa, I see a Nazi."

Smith told the BBC that Savage was "someone who has fallen into the category of fomenting hatred, of such extreme views and expressing them in such a way that it is actually likely to cause inter-community tension or even violence if that person were allowed into the country."

Savage reacted sarcastically.

"Darn! And I was just planning a trip to England for their superior dental work and cuisine," he told the conservative Web site WorldNetDaily.com.

He added that he has not actually been to Britain in about two decades and has no plans to return, except perhaps to take Smith to court. "I want to sue the British home secretary for defamation, for linking me up with murderers because of my opinions, my writings, my speaking -- none of which have advocated any violence, ever," he said.

The Rev. Fred W. Phelps Sr. and his daughter Shirley Phelps-Roper of the Kansas-based Westboro Baptist Church also are unwelcome in the United Kingdom. The pair, who have picketed at funerals carrying placards with anti-gay slogans, are banned for "fostering hatred," the Home Office said.

The other Americans on the list are Eric Gliebe, described by the Home Office as a distributor of "racist leaflets"; Abdul Ali Musa, a Muslim activist; and former Klan leader Stephen Donald Black.

"Coming to the U.K. is a privilege and I refuse to extend that privilege to individuals who abuse our standards and values to undermine our way of life," Smith said in a statement. "Therefore, I will not hesitate to name and shame those who foster extremist views as I want them to know that they are not welcome here."

After suicide bombers killed 52 people on London's subway and bus system on July 7, 2005, the British government began barring entry to individuals who promote hatred, terrorist violence or serious criminal activity. In the last four years, 101 people have been excluded.

The 16 people named Tuesday are among 22 banned in the last five months; six were not named because it was not "in the public interest," the Home Office said.

Artur Ryno and Pavel Skachevsky, skinhead gang leaders who were sentenced to prison in Russia last December for their part in 20 racially motivated murders, were banned. So, too, were Islamic preachers Amir Siddique, Safwat Hijazi and Yunis Al Astal.

Some British civil libertarians found the list puzzling.

"How are these people selected? There's no process here, people aren't accused of a specific crime. It's deeply worrying," said Padraig Reidy, news editor of Index of Censorship, a London periodical that campaigns for freedom of expression.

He added that the list is so "bizarrely eclectic" that "you have to wonder if there was a deliberate move to make it eclectic, as if to say it's not Islamists being picked out."

Asked whether a radio talk show host and a convicted murderer constitute similar threats to British society, a spokesman for the Home Office said that each individual "is looked at on a case-by-case basis" and that "names can drop off the list" if individuals "can prove they no longer hold extreme views."

from PCMag.com, 2009-May-19, by John C. Dvorak:

The RIAA Has Got to Stop

According to a study done by the BBI Norwegian School of Management, those who freely download music from file-sharing sites and elsewhere buy ten times more music (yes, they actually pay for it) than people who do not participate in file-sharing systems. In fact, the figure that the report cites for the amount spent by the file-sharing subculture is so high that the record industry doesn't believe it. Well, I sure do, mainly because of an observation I made back in the late 1990s. And I've harped on this observation ever since. This research just confirms my suspicions.

The simple fact is that during the Napster era—a period in which there was no significant musical movement that would trigger any excitement in the business—CD sales increased. As Napster got bigger, sales continued to increase. As Napster was shut down, you could see CD sales decline, and once they put the lid on open file-sharing, the industry went into a tailspin. I never believed this to be a coincidence.

The RIAA and the music industry in general blamed the tailspin on Napster and piracy, harping on the concept of "stealing." The overlooked fact in all this was that with the advent of national radio syndicates and the niche programming that began to flourish in the '90s, people were not easily introduced to new music. There were fewer ways to discover bands and music you liked so that you could go buy those CDs in the first place. This coincided with the demise of the disc jockey (a music nut who kept tabs on trends). The record industry was essentially doomed at this moment of change.

With its ability to show and share collections of music, Napster became the ersatz virtual DJ, letting you self-select bands and singers who appealed to your individual taste. You did this by looking at the collections of like-minded individuals using the system. And in many ways, except for the downloading time, it was more efficient than radio since you didn't have to slog through commercials and could skip a track not to your liking.

No wonder CD sales increased and business was on the upswing. But apparently not a single person working at the decision-making levels of the recording industry understood the sociology or the mechanism—and that's still the case.—Next: Simple Question >

I ask this simple question: If there's a band out there whose CD I would buy, how am I supposed to discover this band? Tell me how! Is Rush Limbaugh going to play them?

The current mechanism for discovery is arcane and getting worse by the day, as thousands of incredibly mediocre musicians muddy the water with MySpace pages, free downloads, and Web sites. The worst bands of the old punk-rock era sound like Mozart compared with some of the no-talents flooding the market with their wailing.

The music industry, having painted itself into a corner, has decided to take the easy way out. The labels identify the very few highly promotable acts and pump all their resources into them. Thus we end up with the Britney Spears era. And while these essentially Broadway products do sell CDs and concert tickets, they're not refining musical taste or helping the market for music as a whole.

So the music industry hopes to survive by suing into oblivion the file-sharers, who are, coincidentally (as mentioned earlier), the only ones supporting the industry by buying CDs. The irony of this is too rich to ignore. It's just funny, really, kind of like chopping off your legs because you're tired of their following you around.

Oh, and by the way, back in the '90s, when Napster was helping CD sales increase, the industry was told a pay-for-downloading model would work, too. They didn't see how. What a bunch of boneheads.

from MarketWatch.com, 2009-May-7, by Therese Poletti:

Fed scrutiny of Google confirms its growing power
Commentary: Search behemoth has become the new Microsoft

SAN FRANCISCO -- For a company whose slogan is "don't be evil," Google Inc. is becoming almost a privatized version of the dreaded Big Brother from George Orwell's "1984."

But the search engine behemoth staunchly believes that by storing, scanning, photographing and then digitizing everything that goes through its dominant search engine and its vast number of free applications, the human race will benefit. Its goals are altruistic.

In recent weeks, though, two separate antitrust inquiries under the new administration confirm what many in Silicon Valley have theorized for awhile -- Google is now the biggest and fiercest tech power to be reckoned with, and it has become too powerful.

That view also has been percolating on Capitol Hill. President Barack Obama's antitrust chief, Christine Varney, gave a window into her thinking last summer in a panel discussion, before she was named to her position.

"For me, Microsoft is so last century. They are not the problem," Varney reportedly said, adding that Mountain View, Calif.-based Google "has acquired a monopoly in Internet online advertising."

Many in the valley were not surprised when the Federal Trade Commission was said to be investigating the fact that two directors sit on both the boards of Apple Inc. and Google. Eric Schmidt, Google's CEO, is on Apple's board and the two are increasingly becoming competitors in the arena of smart phones. Arthur Levinson, the former CEO of Genentech Inc., is also on both boards. See full story.

"I think potential competitors are raising these issues," said Rob Enderle, analyst with the Enderle Group. "The DOJ and FTC are being much more proactive."

Role reversal

One competitor squawking about Google's increasingly dominant position is, ironically, Microsoft Corp., the target of U.S. antitrust litigation over its monopoly power in PC software for years.

Microsoft, whose attempt to buy Yahoo Inc. was rebuffed, called on its now vast array of Washington connections and worked behind the scenes to halt Google's search deal with Yahoo late last year. See story here.

And the New York Times reported late last month that the Justice Department is investigating Google's settlement last October with authors and book publishers for its possible antitrust implications. In the deal, Google will get exclusive rights to millions of so-called "orphan books," whose authors cannot be found. See settlement story here.

"Google is clearly on many people's minds as a result of the Google books thing," said Gary Reback, who just published a book, "Free the Market! Why Only Government Can Keep the Marketplace Competitive." Reback, a Silicon Valley attorney, is known for spearheading efforts that led to the federal lawsuit against Microsoft.

"It reminds me of the early 1990s, and Microsoft had just dispatched its horizontal competitors," he said. Reback added that even though new Yahoo CEO Carol Bartz is doing everything to rejuvenate the Internet pioneer, the battle is over.

Microsoft can't catch up

Now, Google has dispatched its own direct competitors, Reback believes, adding that Microsoft cannot catch up in the area of Internet search at this point. "They (Google) have gone from being David to being Goliath," Reback added.

A few differences, though, can make things go another way for Google. The U.S. seems to be beginning inquiries earlier in the competitive cycle than it did with Microsoft. Back in the late 90s, the company already had established an iron-clad hold of the personal computer operating system market and had pretty much dispatched with Netscape as a potential rival in the Internet browser market.

Another difference between Microsoft's battles with regulators and Google's situation is that Google develops technology that most people love and are loathe to give up.

It's hard to find anyone who does not use the Google search engine every day. "Google it" has become part of our everyday vernacular. Unlike Microsoft's Internet Explorer browser, foisted upon computer users via bundling relationships with PC makers, Google has become the dominant search engine because it is usually quite good.

'Burglar's dream'

Still, some consumers are waking up to the power that Google holds and the potential dangers associated with its information collecting. A small group of neighbors in a well-to-do U.K. suburb formed a human chain to stop a Google Street View car from driving through their neighborhood. One neighbor described it as a "burglar's dream."

A Google executive responded blithely in an interview with the BBC that anyone can remove the photos of their home from Google Street View, simply by filling out the "report a problem" section. He also noted that the shots on Street View are not live, implying they are not a privacy threat. Still, hundreds have removed their houses from Google Street View in the U.K. since its recent launch.

The company's pact with authors and publishers raised eyebrows because it is putting more information under Google's control.

"They are aggregating a tremendous amount of power," Enderle said.

Google has surely been put on notice, but it is not clear that anything can stop it now, or if users even want that to happen.

from TheRegister.co.uk, 2009-May-11, by Bill Ray:

Apple: No Jesus on the Jesus Phone
Me Not So Holy

Continuing their policy of random offence, Apple has rejected an application that places the user's face onto religious figures, while changing their mind on the Nine Inch Nails and allowing a test for manic depression.

Me So Holy puts a photograph of the user's choice into the face of a holy figure, much like a sea-front cut out - only even less risqué. But too rich for the boys in Cupertino who rejected the app on the grounds that it "contains objectionable content":

The same application using animals, from the same publisher, is selling fine so it seems it's the pictures of religious figures that has Apple upset.

Until recently, Apple was also upset with Trent Reznor, but changed its mind when the man who is the Nine Inch Nails threatened to take his Nine Inch Nails application into the world of jail-broken phones, as well as pointing out that the content to which Apple was objecting wasn't part of the app, but could be downloaded though it, setting a dangerous precedent.

If all this iPhone nonsense is getting you down then then perhaps you should get a copy of "Sad Scale 1.0," the only software for your iPhone designed to diagnose clinical depression. Not only can you run through questions created to diagnose your condition - perhaps brought on by failure to get your own application through Apple's labyrinthine certification procedures - but you can e-mail them directly to your doctor who will no-doubt be delighted to receive the details. There's nothing doctors like more than a bit of IT-managed self-diagnosis.

from iLounge.com, 2009-May-11, by Charles Starrett:

Apple rejects BitTorrent control app Drivetrain [Updated]

Apple has rejected iPhone developer Maza Digital's Drivetrain application, a remote control for Transmission, a BitTorrent client for Mac OS X and other platforms. After an initial email stating that Drivetrain required “unexpected additional time for review,” Maza then received a rejection email from Apple, stating that “this category of applications is often used for the purpose of infringing third party rights. We have chosen to not publish this type of application to the App Store.”

Calling the rejection “ridiculous,” Maza notes that “a BitTorrent client or the BitTorrent protocol are not illegal (and does not infringe on third party rights),” and points out that Drivetrain does not download anything itself, instead allowing users to manage the activity of Transmission, including controls for stop, start, and delete; while it allows users to upload .torrent files to Transmission, it does so by sending links to Transmission instead of downloading/uploading files itself. Maza suggests that Apple “seems to have decided that any app that has anything to do with BitTorrent (even if the app does not download/upload anything!) is treated as doing something that `is often used for the purpose of infringing third party rights,' and will therefore likely be rejected.”

Update: iPhone developer David Muzi contacted iLounge to point out that his iPhone and iPod touch RSS application Trackr, currently available on the App Store, also lets users remotely queue torrents to start downloading to a computer running uTorrent or Transmission—functionality similar to what Apple rejected in DriveTrain. Trackr sells for $2.99.

from news.CNet.com, 2009-Apr-15, by Stephanie Condon:

New Net taxes amid taxing times?

Because of quirks in many state laws, sales taxes may be levied on CDs sold in storefronts but not on iTunes and other digital downloads. It's a situation that recession-weary, tax-hungry politicians are hoping to change.

A growing number of states are considering laws to tax digital goods, such as iTunes songs, Amazon MP3s, or electronic books. Yet at a time when governments say they want to encourage broadband adoption and the development of a low-carbon economy, opponents say taxing digital goods sends exactly the wrong message.

Mississippi is one of the latest states to write into law a tax on digital products. The measure, which was adopted mid-March and goes into effect July 1, imposes a sale and use tax on specified digital products--including digital audio-visual works such as movies, digital audio works such as ringtones, and digital books.

Republican Gov. Haley Barbour endorsed the legislation via Twitter. "On HB 1461, I support this bill and here's why: This bill will treat Internet sales like catalog sales making it a level playing field," he said on March 11.

Including Mississippi, at least 18 states claim they have the authority to collect taxes on digital goods, and more are likely to join them.

On March 12, a bill was introduced in the North Carolina general assembly "to modernize the sales and use tax statutes by treating music, movies, books, and computer software that are delivered electronically the same as those that are purchased in a tangible medium."

A digital goods tax measure was also introduced in the Minnesota House of Representatives in late March. The bill could raise the state more than $8.2 million in 2010 through 2013, according to the Minnesota Department of Revenue (PDF).

States such as Washington and Vermont are also considering such measures, according to Stephen Kranz, an attorney at the Sutherland law firm who represents companies in the digital media industry.

The idea isn't popular everywhere. A proposal to tax digital goods in New York died this month when it was left it out of the state budget.

Rob Atkinson, the president of the Information Technology and Innovation Foundation, said that policy makers should distinguish between digital goods and digital services in their tax laws.

"A service would be someone designing your Web site for you," Atkinson said. "Whether they design it from a thousand miles away or in your office is irrelevant. On the other hand, if someone is buying (music online), it should be treated in the same way as a physical analog in the economy."

"I don't think most policy makers think about it that way," he added.

The Washington state bill would clearly tax digital services as well as what's typically considered digital goods, Kranz said. The Streamlined Sales Tax Project, a multistate effort to develop uniform standards for taxation, adopted in 2007 a specific definition of digital products, along with procedures for how they should be taxed.

Location, location, location

A uniform definition across states would make the taxes less burdensome to merchants, Atkinson said.

"There has to be some easy to use plug-in software...so each seller doesn't have to go through this accounting nightmare," of determining the taxes due in each state, he said.

However, some proposed laws such as Minnesota's would not apply to online merchants based outside the state, Kranz said. That's because under the legal concept of "nexus," a state generally may only tax a company that has a physical business presence within the state's borders--though a state may apply a "use tax" for goods coming into the state from elsewhere.

Those states that are not including a use tax in their proposals are "'discriminating against their own digital community," Kranz said. "If I'm a consumer and I have a choice between two Web sites and one charges tax and one doesn't, which one do you think I'm going to purchase from?"

In fact, North Dakota Gov. John Hoeven on March 19 signed into law a measure to explicitly exempt digital goods from taxes for that reason.

"I think it's important we send a message to the world of digital products that this is a state that's favorable to their interests," Dwight Cook, the state senator who introduced the tax exemption bill, told CNET News in January.

The tech industry has also been advocating for the government to promote the use of information and communications technology as a means of creating a more energy efficient economy--a goal that may be undermined by digital goods taxes, according to some.

"The digital economy is growing fast, and the tiny carbon footprint of downloads is something that benefits all of us," said Steve DelBianco, executive director of NetChoice. "Digital downloads are the most environmentally responsible way to get movies, music and software, and tax policy is one the ways we promote environmentally sound decisions."

Digital goods taxes may be particularly unappealing to consumers on April 15, DelBianco said.

"Writing a fat tax check is particularly painful when your home (value) and savings have declined so deeply, and the idea of facing new taxes on digital goods makes that pain last all year long," he said.

from the Daily Emerald, 2009-May-4, by Dan Lawton:

A new Google order

The best books ... are those that tell you what you know already.

- George Orwell

If you Google the word "Google," you get 2,650,000,000 results. If you Google "Google, monopoly," 3,210,000 items are returned. If you Google "Google, Orwellian nightmare, digital apocalypse, corporate intellectual engineering," the harvest is much more limited; only 1,280 matches appear.

These results, the product of complicated algorithms, exist for one reason: Google allows them to. The moment it decides this information is either irrelevant or unsavory, it can easily be buried deep into the black hole of cyberspace where no one - not even an errant bottom-feeder - can find it.

Of course, the folks at Google don't do this; it's not their business plan. What they want, at the moment, is to acquire more information, not bury it. But imagine a future in which all information is stored, displayed, filtered and produced by one source: Google. Imagine a future in which print books cease to exist - it's likely on the horizon - and every piece of literature from Plato's "The Republic" to your calculus textbook exists in a digital format with one monolithic gatekeeper. Imagine typing in a search query for Ray Bradbury's "Fahrenheit 451" and getting back a list of books about baking turkeys; the novel is gone, vanished.

Yes, I am being sensational. True, there is little evidence Google has such pernicious motives, but one part of this doomsday scenario is not only feasible, it's happening now. A $125-million settlement of a class-action lawsuit filed on behalf of the copyright holders of millions of books may provide Google exclusive digital rights to most of the books in the world.

The lawsuit is a result of Google's Book Search Project, for which the company has scanned and digitized more than 7 million books in the last five years. Google has been digitizing and making available for download all books not under U.S. copyright law. It also scans and shows snippets - up to 20 percent - of copyrighted books, under the protection of the Fair Use doctrine. Google's intention, according to its mission statement, is to "organize the world's information and make it universally accessible and useful." However, being able to publish snippets of books in search results also creates revenue, which is why a consortium of authors and publishers sued Google in 2005 demanding a share of the profits.

What happened next was a bit of legal maneuvering so sly it would have blown Perry Mason's mind.

When Google sat down at the negotiating table with publishers, it was ready and willing to pony up a bundle of cash to keep its digital library growing. However, what it wanted in return was an explicit license to digitize and sell "orphan books," which are out-of-print copyrighted works with no findable heir or owner. By some estimates, these books make up about 70 percent of books in print, and there's no precedent for whom their digital rights should belong to.

By wresting control of orphan books into perpetuity, Google essentially turned the concept of a class-action lawsuit inside out. In addition, it inserted a "most favored nation" clause in the settlement, which would prevent publishers from offering better terms on non-orphan books to Google's future competitors.

The ramifications are chilling. Brewster Kahle, founder of the non-profit Internet library Archive.org, said future libraries may be nothing more than "subscribers to a few monopoly corporations' databases." Even more worrisome will be Google's ability to alter the availability and popularity of literature via its search rank. If Google doesn't like a book, it will be able to effectively purge it by making it unsearchable. The cherry on top is that Google will have a comprehensive database of the reading lists of all Americans that will be searchable by any topic. Wow, I wonder who might be interested in that?

The only good news is that the settlement has yet to be approved, and a public comment period during which objections can be heard has just been extended. Consumer groups, publishers and even Microsoft have stated their opposition to the settlement. More importantly, it appears the Department of Justice is considering filing an anti-trust grievance against Google.

It should.

There has been much speculation on how the Obama administration would deal with Google - who tussled with the Bush DOJ on numerous occasions - as Google's chief executive Eric Schmidt was previously an informal technology advisor to the president. The administration needs to quell any speculation of favorable treatment by intervening now.

America's most powerful corporation having a virtual monopoly on digital books isn't just bad news; it's cataclysmic. If anyone should be conscious of the awesome power of the world's biggest search engine, it's President Obama. His name returns 103 million results.

from the Los Angeles Times online, 2009-May-4, by Alex Pham:

Libraries ask court to monitor Google after book settlement is approved

Three organizations representing 139,000 libraries today asked the judge overseeing Google's settlement with authors and publishers to make sure that the company doesn't violate the privacy of readers who would use its vast digital books collection.

They also petitioned U.S. District Court Judge Denny Chin to ensure that Google doesn't set the price for access to its digital books "beyond the reach of many libraries."

The organizations, which include the American Library Assn.; the Assn. of College and Research Libraries; and the Assn. of Research Libraries, said they were not opposed to the settlement, which was reached in October between Google and the Assn. of American Publishers and the Authors Guild.

"The Settlement has the potential to provide unprecedented access to a digital library containing millions of books," the library groups said in a letter to the court. "But in the absence of competition for the services enabled by the Settlement, this impact may not be entirely positive. The Settlement could compromise fundamental library values such as equity of access to information, patron privacy, and intellectual freedom."

The proposed settlement, which requires court approval, would create a books registry to keep track of copyrights and dole out money based on how Google profits from digitized books. As of November, Google had scanned about 8 million books through a partnership with libraries. In exchange, Google has promised to give each library a single free terminal for patrons to read the books, but not print or copy any of the works. For broader access, libraries would have to pay an institutional subscription fee that has not yet been determined.

Many librarians also fret about the effect the settlement would have on free access, a fundamental value of libraries. "To digitize collections and sell products in ways that fail to guarantee wide access ... would turn the Internet into an instrument for privatizing knowledge that belongs in the public sphere," Robert Darnton, director of the Harvard University Library, wrote in an essay titled "Google & the Future of Books."

Other organizations have expressed fear over a perceived lack of competition and Google's domination of a digital book market. The Internet Archive in San Francisco, which scans books whose copyrights have lapsed and makes them available online for free, contends that the settlement would give Google an unfair advantage in being able to digitize millions of so-called orphan books -- titles that are still protected under copyright but whose rights holders cannot be located or determined. Though the settlement protects Google from future lawsuits arising from the scanning of those books, other organizations attempting to do the same would still be open to liability, said Peter Brantley, director of the Internet Archive.

Brantley has said he was interviewed in April by officials from the Justice Department regarding the settlement. Another group, Consumer Watchdog in Santa Monica, also confirmed discussions with Justice Department officials on the effects of the settlement on competition.

from National Public Radio online, 2009-Apr-30, by Maureen Clements:

>The Secret Of Google's Book Scanning Machine Revealed

The other day my colleague Kee Malesky turned me on to an incredibly interesting article from the New Scientist website about the granting of patent 7508978. What's so important about Patent 7508978 you ask? It's the patent that explains how Google's proprietary book scanning technology works.

Before Google came on the scene, book scanning was a tedious process that sometimes resulted in the death of a book. The software used to scan books, called Optical Character Recognition software or OCR for short, required each page of the book to be flat. Now anyone who's ever opened a book knows it's next to impossible for a book to lie flat without some sort of device. One solution to the problem was to use glass plates that individually flattened each page, but this method wasn't very efficient. The other solution was to chop off the book's binding, but that method destroyed the book. How was one to go about scanning a book quickly and efficiently without destroying it? It was a problem that vexed book scanners for years until Google came up with this solution

Turns out, Google created some seriously nifty infrared camera technology that detects the three-dimensional shape and angle of book pages when the book is placed in the scanner. This information is transmitted to the OCR software, which adjusts for the distortions and allows the OCR software to read text more accurately. No more broken bindings, no more inefficient glass plates. Google has finally figured out a way to digitize books en masse. For all those who've pondered "How'd They Do That?" you finally have an answer.

from the Wall Street Journal, 2009-Mar-11:

The Union Cudgel
Big Labor gets nasty on 'card check.'

Big Labor's drive to eliminate secret ballots for union elections has united American business in opposition, so labor chiefs are putting on the brass knuckles: The new strategy is to threaten companies with government retaliation if they don't stop lobbying against turning U.S. labor markets into Europe.

We wrote on February 13 about the letter from the labor consortium Change to Win to the Financial Services Roundtable, demanding that banks receiving Troubled Asset Relief Program money keep quiet about union "card check." To its credit, the banking lobby hasn't backed down. Now Big Labor is escalating, demanding in a February 23 letter to Secretary Timothy Geithner that Treasury muzzle the companies if they won't muzzle themselves.

"Firms receiving significant TARP assistance continue to lobby against the interests of hard working taxpayers," says the letter from Change to Win Chair Anna Burger. "For example, these firms continue to oppose legislation that would allow bankruptcy judges to modify mortgage loan terms, establish a Credit Cardholder's Bill of Rights and protect consumers from corporations that bury mandatory arbitration clauses in fine print."

Imagine that: Banks are daring to fight legislation that would reduce their profitability -- and at a time when our public officials say they are desperate for banks to earn themselves out of trouble.

The letter targets in particular the Principal Financial Group, based in Des Moines, which it says should be denied TARP money because of the "scale and scope" of its lobbying. But wait -- Citigroup spent three times more money on fourth-quarter lobbying than the $515,000 spent by Principal, the unions admit. So, what gives? It seems Principal's real sin is that it "lobbied on 26-labor related bills . . . including the Employee Free Choice Act," and it is the only TARP applicant or recipient to have disclosed doing so.

In case Mr. Geithner doesn't get the political point, the letter helpfully notes that "there is now a Congressional effort underway to curb lobbying by TARP recipients." Senators Dianne Feinstein (California) and Olympia Snowe (Maine) are leading that effort to limit corporate political speech, and Ms. Burger copies no fewer than 13 Members of Congress on her Treasury missive.

The double standard here is remarkable. Every year, unions collect millions of dollars in grants from government agencies they lobby. In 2002 and 2003, the Service Employees International Union -- the main driver behind Ms. Burger's consortium -- lobbied the Department of Health and Human Services while receiving between $563,226 and $938,388 per year in grants. Imagine if Tom DeLay had ever said that labor unions or AARP couldn't speak up about Medicare because they or their affiliates had accepted federal grants. The headlines would have read: "Republican Gag Rule."

Labor chiefs are desperate to pass their easy-organizing agenda this year, because they know liberal majorities on Capitol Hill won't last. They also know they haven't been able to organize workers with a level playing field, so they want to rewrite the rules so their organizers can see which individual workers are voting no and apply peer and other pressure. Most workers can see how unions have contributed to the destruction of Detroit, U.S. steel makers and so many other industries. That's why unions need government-sanctioned coercion to prevail both against business and with workers.

Congratulations to Principal Financial's Chairman J. Barry Griswell, aided in particular by the Chamber of Commerce, for refusing to succumb to this thuggery.

from the Denver Post, 2009-Apr-27, by Jessica Fender:

GOP "tracker" calls 911 on union members
Union members deny intimidating the man at a Democratic event.

It was either a frightening confrontation or a misunderstanding, depending on who's talking.

State GOP aide Matt Milner dialed 911 because he said union organizers blocked his exit and demanded he erase a video recording of Democratic Sen. Michael Bennet on Saturday afternoon following a townhall meeting sponsored by the AFL-CIO.

Mike Cerbo, executive director of Colorado AFL-CIO, said Milner came looking for trouble, but he wasn't forced to erase the tape or barred from leaving. It's now a matter for the Adams County Sheriff's Office, where authorities Sunday confirmed that they received a complaint from Milner. Police also confirmed his Saturday emergency call.

"I feared for my safety. Period," the 25-year-old Milner said Sunday.

Neither Bennet nor his staff was present at the altercation, said both Milner and a representative for the senator.

Milner has been a familiar face at about a dozen official Bennet events. The state Republican Party confirmed that it pays him to shadow and videotape the freshman senator in a practice known as "tracking."

There was no reason to think Saturday's gathering at the International Brotherhood of Electrical Workers' Local 68 union hall — billed as an "everyone's welcome" affair on the invitation — would vary from the typically uneventful routine. And for several hours it didn't, Milner said.

But Milner, with his tripod and video camera, garnered the attention of event organizers just as Bennet bid his adieu to hundreds of audience members, some of whom had grown passionate over politically tricky labor issues, such as the Employee Free Choice Act.

The Employee Free Choice Act would make it easier for unions to organize by effectively eliminating secret-ballot elections and allowing workers to show union support by signing a form, a process known as card-check.

It's poised to be one of the most contentious votes of Bennet's first year, potentially affecting his 2010 campaign.

The 5-foot-6-inch Milner found himself surrounded as the event wound down, he said.

"This hulking guy comes flying at me, and he's yelling 'Who are you with?' There's a flurry of F-words," Milner said. "They circled around me. I'd try to move, and they'd move to block my path."

Cerbo, one of the five men who spoke to Milner after Bennet's speech, disputed that version of events Sunday. He said the young interloper was aggressive and tried to provoke a confrontation, though he declined to say how.

"He came in uninvited. . . . I'd call him a trespasser," Cerbo said. "He didn't get the incident he wanted, so he's clearly lying about what happened."

By Cerbo's recollection, Milner offered to erase his tape because he hadn't been invited to the event. Milner says he was barred from leaving until he agreed to erase the recording and that one of the men briefly took his camera to make sure it was.

from the Wall Street Journal, 2009-Mar-30, by David B. Rivkin Jr. and Lee A. Casey:

Why Card Check Is Unconstitutional
Only secret ballots are consistent with the First Amendment.

The Employee Free Choice Act of 2009 -- otherwise known as "card check" -- is organized labor's dream. As a practical matter, this legislation, pursued by both the Obama administration and the Democratic Congress, would do away with the secret ballot in the unionization process. Although card check's advocates and critics have spilled much ink arguing about the bill's fundamental fairness to labor and management, so far the debate has not focused on the other compelling interest at stake: the constitutionally protected right of employees to keep their opinions on controversial issues like unionization to themselves. This is card check's Achilles' heel.

The Supreme Court has interpreted the First Amendment's guarantee of freedom of speech, along with the Fifth and 14th Amendment due process clauses, to protect a variety of expressive and associational rights. The right to speak and associate anonymously is among those rights. Indeed, anonymous speech has a long and honored tradition in American politics. Much of the political agitation leading up to the American Revolution was necessarily anonymous in order to avoid British sedition charges. And three of the Constitution's Framers -- James Madison, Alexander Hamilton and John Jay -- wrote the Federalist Papers supporting its ratification under the anonymous pen name "Publius."

The Supreme Court has consistently recognized the importance of this type of political discourse. The reason is obvious: Public speech on contentious issues often inflames passions, prompting intimidation and retaliation. Outing speakers who prefer anonymity chills speech, and has the potential to suppress it entirely.

In an early and important case, NAACP v. Patterson, 1958, the state of Alabama attempted to obtain a listing of the NAACP's membership, although the organization had "made an uncontroverted showing" that revealing the identities of its members had, in the past, exposed them to "economic reprisal, loss of employment, threat of physical coercions and other manifestations of public hostility." The Supreme Court affirmed the NAACP's right to associate freely and privately.

The Court similarly vindicated the right to anonymous speech in political campaigns in the 1995 case McIntyre v. Ohio Elections Commission. It struck down a law forbidding distribution of unsigned campaign literature, reasoning that the state had shown no interest compelling enough (such as the integrity of the campaign financing process) to justify restrictions on this core First Amendment right. "Identification of the author against her will," the Court explained, "is particularly intrusive; it reveals unmistakably the content of her thoughts on a controversial issue."

When courts have upheld restrictions on anonymous speech, they have required that such provisions be narrowly tailored to serve an overriding governmental interest. Moreover, they have been most comfortable in upholding these provisions when the competing interest itself also involved the protection of First Amendment values.

Thus, for example, campaign contribution limits and disclosures have been defended as necessary anticorruption measures, balancing the abridgement of individual speech against the integrity of the political process, and protecting the marketplace of ideas. Whatever one thinks about the legal strength of these rationales -- and they have many detractors -- it's clear that the judiciary has used them when balancing competing First Amendment interests.

There can be little doubt that the act of voting on important issues is a form of symbolic speech, residing at the very core of the interests protected by the Constitution. The secret ballot has not only been adopted in federal and state elections, it is recognized as a fundamental human right in a number of international instruments. This includes the U.N. Covenant on Civil and Political Rights, to which the United States is a party, that requires secret ballot voting as "guaranteeing the free expression of the will of the electors."

Labor organizing has been one of the most contentious exercises in modern American history, often leading to violence and employee intimidation on both the management and union side. Demanding that workers state publicly (by checking "yes" or "no" on a card) whether they support unionization would involve real and immediate dangers of intimidation, and would deprive workers of their right to anonymous expression. The fact that individuals could refuse to sign a card is unavailing, since a refusal to choose, in this instance, is an effective no.

Card-check supporters may argue that the activities of labor organizers, no matter how intimidating, involve purely private actions to which the Constitution's protections of free speech and association do not apply. However, the Supreme Court has recognized that certain government-sanctioned regulatory schemes can give associated private conduct the character of state or federal action, making the Constitution applicable.

In one early case, Public Utilities Commission v. Pollack (1952), the Court ruled that a private, Washington, D.C., bus company, which operated a radio news and music service in its vehicles that prompted customer complaints of unwanted political indoctrination, was subject to First and Fifth Amendment requirements. The Court reasoned that the Constitution applied since the local public utility commission had permitted the challenged service. In another important case, Railway Employees' Department v. Hanson (1956), the Court concluded that federal authorization of "union shop" agreements (under the Railway Labor Act) meant that governmental action was present because "the federal statute is the source of the power and authority by which any private rights are lost or sacrificed."

The same would be true of card check, which would endow a successful authorization-card drive by labor organizers with immediate consequences under federal law. The National Labor Relations Board would, under the new law, have to "certify" a collective bargaining unit based upon the completed cards. And the new law would effectively subject employer and employees to binding arbitration.

The presence of sufficient governmental action to require constitutional scrutiny can often be a fact-intensive inquiry. But when such mandatory legal consequences result from ostensibly private conduct, the courts would certainly be justified in concluding that the Constitution's requirements apply.

Sanctioning -- and thereby promoting -- demands that employees publicly disclose how they feel about unionization clearly violates their First Amendment entitlement to vote and practice their speech privately. Significantly, unlike other cases in which such restrictions have been upheld, union organizers cannot articulate even a semblance of an offsetting First Amendment value. While they may complain that the current system does not favor unionization and hence inhibits their associational rights, the problem, if any, arises from possible employer intimidation -- not from the secret ballot as such.

In this context, the new law would entitle organized labor to the government's imprimatur of its card-check choice. With the government thus supporting demands that employees publicly state their opinions on a controversial matter, the courts should view card-check's provisions as being ill-tailored to meet the problem of employer intimidation, and thus, unconstitutional.

Messrs. Rivkin and Casey are Washington, D.C., lawyers who served in the Justice Department under Presidents Ronald Reagan and George H.W. Bush.

Read Rightwing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment, released 2009-Apr-7 for national dissemination to law enforcement bodies by the US Department of Homeland Security.

from the Washington Times, 2009-Apr-15, by Audrey Hudson:

Top Dem 'dumbfounded' by 'extremism' report

The top House Democrat overseeing the Department of Homeland Security is demanding that officials there explain how and why they wrote and released a controversial report identifying veterans as potential terrorist threats.

Rep. Bennie G. Thompson of Mississippi, chairman of the House Homeland Security Committee, said in a letter to DHS Secretary Janet Napolitano that he was "dumbfounded" such a report would be issued.

"This report appears to raise significant issues involving the privacy and civil liberties of many Americans -- including war veterans," Mr. Thompson said in the letter sent Tuesday.

"As I am certain you agree, freedom of association and freedom of speech are guaranteed to all Americans -- whether a person's beliefs, whatever their political orientation, are 'extremist' or not," Mr. Thompson said.

The report "blurred the line," and Mr. Thompson said he is "disappointed and surprised that the department would allow this report to be disseminated" to law enforcement officials nationwide.

Also Wednesday, Ms. Napolitano issued a statement standing by the report, which she personally had reviewed before it was issued. She insisted that DHS never would investigate based on political ideology and agreed to meet the head of the American Legion, who already had expressed anger over the report.

The Washington Times reported Tuesday that the department's Office of Intelligence and Analysis (I&A) released a report titled Rightwing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment on April 7. It identified as potential terrorist threats people who collect guns, veterans, supporters of border control, and pro-life advocates.

"I am particularly struck by the report's conclusion which states that I&A 'will be working with its state and local partners over the next several months to ascertain with greater regional specificity the rise in rightwing extremist activity in the United States with a particular emphasis on the political, economic, and social factors that drive rightwing extremist radicalization,'" Mr. Thompson said, demanding to know what types of activities DHS had planned for "the next several months."

from the Wall Street Journal's Political Diary, 2009-Apr-22, by John Fund:

A New Blacklist?

Entertainment blogger Perez Hilton wasn't subtle after Miss California Carrie Prejean said she favored limiting marriage to a man and woman in response to a judge's question about gay marriage at the Miss USA pageant. He called her "a bitch" and "the c word" on camera afterwards. She responded merely by saying she felt sorry for him.

In a calmer moment, Mr. Hilton insisted: "Miss USA should represent all Americans, and with her statement she instantly was divisive and alienated millions of gays and lesbians, their families, friends and supporters." Hmmm. It was only five months ago that a majority of California voters voted to limit marriage in just the way Ms. Prejean suggested -- to a man and woman. A national survey by ABC News finds that voters still opposed the concept of gay marriage by 58% to 36%. Sounds to me like Mr. Hilton wants Miss USA pageant winners to only represent his viewpoint. Indeed, Mr. Perez told ABC News that her answer on gay marriage sealed Ms. Prejean's loss of the title: "She lost it because of that question. She was definitely the front-runner before that." Ms. Prejean eventually finished second.

Hollywood has spent more than half a century railing against the anti-Communist blacklists of the 1950s that prevented some people from working in the movie industry. Woody Allen, George Clooney and other celebrities have produced liberal-minded films purporting to show how evil the blacklist was and upbraiding those who were silent while it was imposed.

Well, a new blacklist is being created right now, though few celebrities have dared to deplore it. Last December, Scott Eckern, artistic director of the California Musical Theater in Sacramento, the state's largest nonprofit performing arts company, donated $1,000 to the "Yes on 8" campaign against gay marriage. Protests from the producer of the Broadway musical "Hairspray" and many other show business people soon forced him to resign.

Similarly, Los Angeles Film Festival Director Richard Raddon was forced to step down after it was revealed he had donated $1,500 to "Yes on 8." The festival's organizer put out a statement blandly saying: "Our organization does not police the personal, religious or political choices of any employee, member or filmmaker." Behind the scenes, however, many of the festival's board members pressured Mr. Raddon to resign. "From now on, no one in entertainment is going to feel safe making a donation as measly as $100 to a conservative defense-of-marriage campaign," says Brent Bozell, head of the conservative Media Research Center.

Nor if Ms. Prejean's experience is any guide will many people be willing to exercise their free speech rights if they oppose gay marriage.

from ComputerWorld.com, 2009-Apr-3, by Jaikumar Vijayan: