Computer Ethics, Summer 2012

Readings

Some patent papers

Stallman is against software patents, of course. However, his case here is better than many open-source-related arguments; in fact, it is squarely aligned with the interests of software-development businesses.

3.Paul Graham, a computer scientist and one of the partners of the venture-capital firm Y Combinator, wrote a 2006 essay Are Software Patents Evil?

Hit Man

this was a book published by Paladin Press, written by "Rex Feral", supposedly a pseudonym for a woman who writes true-crime books for a living. It is likely a work of fiction.

In 1993, James Perry murdered Mildred Horn, her 8-year-old son Trevor, and nurse Janice Saunders. He was allegedly hired by Lawrence Horn. In Rice v Paladin Enterprises (1997), the federal court of appeals (4th circuit) held that the case could go to jury trial; ie freedom-of-press issues did not automatically prevent that.

Many of the specifics of the Perry murders were out of the book. Many of them are rather compellingly "obvious": pay cash, rent a car under an assumed name, steal an out-of-state license plate, use an AR-7 rifle (accurate but collapsible), make it look like a robbery

The book also explains how to build a silencer, which is not at all obvious; Perry allegedly did just this.

The following are from the judge's decision. "Stipulations" are alleged facts that are not being contested at the present time.

"The parties agree that the sole issue to be decided by the Court . . . is whether the First Amendment is a complete defense, as a matter of law, to the civil action set forth in the plaintiffs' Complaint. All other issues of law and fact are specifically reserved for subsequent proceedings." (emphasis added)

Notwithstanding Paladin's extraordinary stipulations that it not only knew that its instructions might be used by murderers, but that it actually intended to provide assistance to murderers and would-be murderers which would be used by them "upon receipt," and that it in fact assisted Perry in particular in the commission of the murders of Mildred and Trevor Horn and Janice Saunders, the district court granted Paladin's motion for summary judgment and dismissed plaintiffs' claims that Paladin aided and abetted Perry, holding that these claims were barred by the First Amendment as a matter of law.

What's going on here? Why did Paladin stipulate all that? It looks to me like Paladin was acknowledging the hypotheticals as part of its claim that they didn't matter, that the First Amendment protected them.

The court ruled it did not:

Past cases that lost:

• publishing advice on how to make illegal drugs
  
• publishing advice on how to cheat on your taxes

Brandenberg v Ohio [discussed above under PP v ACLA] was cited as a case of protected speech advocating lawlessness. But this case, due to Paladin's stipulations [!!], was much more specific.

A popular theory was that after Paladin Press settled the case (which they did, under pressure from their insurer), the rights to the book ended up in the public domain. Paladin claims otherwise; however, the Utopian Anarchist Party promptly posted the entire book at overthrow.com and that was that. [Other parties may also have posted the book independently] (The bootleg copies don't have the diagrams, though)

It has been claimed that Hit Man was sold almost entirely to non-criminals who simply like antiestablishment stuff. However, this is (a) speculative (though likely), and (b) irrelevant to the question of whether some criminals bought it.

Look at the current Paladin website. Does it look like their primary focus is encouraging criminals? Secondary focus?

To find Hitman, google "hit man" "rex feral", or search Amazon.com. Most references as of 2009 are to those selling used copies of the physical book;  check out amazon.com for current prices of used editions. The site http://mirror.die.net/hitman still has the online text.

Other bad materials:

• Encyclopedia of [Afghan] Jihad
• Bomb-making instructions generally

Note the Encyclopedia of Jihad has a significant political/religious component!

4th-circuit opinion: http://www.bc.edu/bc_org/avp/cas/comm/free_speech/rice.html

Anti-Defamation League, Combating Extremism in Cyberspace

Threats

Harassing speech

• persistent
• must inflict emotional harm

Incitement to Imminent Violence

Group Libel

Criminal Libel

ISPs and Hate Speech

Universities and Hate Speech

German regulation of hate speech

• defamation of the deceased
• incitement to violence and hatred
• public display of the Nazi swastika
  
• claiming as fact things that are demonstrably false

International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)

LICRA v Yahoo

Baase, section 3.3.2; see also Marc Greenberg's article at http://www.btlj.org/data/articles/18_04_05.pdf. (Quotes below not otherwise cited are from Greenberg's article.)

Yahoo offered Nazi memorabilia for sale on its auction site. They were sued by LICRA (LIgue Contre le Racisme et l'Antisémitisme, or now Ligue Internationale Contre le Racisme et l'Antisémitisme), joined by the UEJF, the Union of French Jewish Students. In France the sale of Nazi memorabilia is illegal.

This is a JURISDICTIONAL case that probably should be discussed elsewhere, except that it addresses a free-speech issue. But this is as good a time as any to start in on some of the rationales for a given court's claiming judicial jurisdiction related to an action that occurred elsewhere. Here are some theories, more or less in increasing order of "engagement":

• the "affects" test: the court decides that the remote action affects its own local citizens in some manner. A passive website would count here.
  
• the "affects intentionally" test: the court decides that the source intended to have an effect on its local citizens
• the "targeting" test: the court feels that the action was directed at its local citizens, with some level of intent.
• the "primarily affects" test: the court decides that the action's primary effect is on its local citizens
• the plaintiff test: the affected party (buyer or the one defamed, for example) lives in the local jurisdiction
• purposeful availment: by choosing to engage in local commerce, the remote entity "purposefully avails" itself of the legal system of the local jurisdiction.
• contract: the remote site has a contract with parties in the local jurisdiction
  

The LICRA v Yahoo case was heard in Paris by Judge Jean-Jacques Gomez, who explained the French law as follows:

Whereas the exhibition of Nazi objects for purposes of sale constitutes a violation of French law ..., and even more an affront to the collective memory of a country profoundly traumatised by the atrocities committed by and in the name of the criminal Nazi regime against its citizens and above all against its citizens of the Jewish faith . . . .

Judge Gomez decided they did have jurisdiction to hear the case. But Yahoo US has no assets in France! There was a separate company, Yahoo France, that controlled the yahoo.fr domain.

Judge Gomez based his jurisdictional decision on the so-called effects test: that the actions of Yahoo US had negative effects within France. Intent, or targeting, or direction do not enter; the effects test is perhaps the weakest basis for claiming jurisdiction. Gomez later explained some of his reasoning in an interview:

For me, the issue was never whether this was an American site, whether Yahoo had a subsidiary in France, the only issue was whether the image was accessible in France. It is true that the Internet creates virtual images, but to the extent that the images are available in France, a French judge has jurisdiction for harm caused in France or violations of French law.

Gomez issued his first interim order on May 22, 2000: that Yahoo US must use geolocation software to block access to its auction materials within France. It was estimated that 70% of French citizens could be blocked by the software alone, and that another 20% would be blocked by adding a page that said

    To continue, click here to certify that you are not in France

What would the purpose of that be? Clearly, French neo-Nazis would likely simply lie. However, other French citizens would be reminded that these objects violated French law. What is the purpose of laws?

The US side

• whether the US court had jurisdiction at all over LICRA and UEJF
• whether there was sufficient actual controversy that a declaratory judgement could be issued.
  

• LICRA & UEJF must have "purposefully availed" themselves of the right to conduct some US-based transaction, in some sense acknowledging their protection under US laws (specifically
  The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws;)
  
• The claim must arise out of LICRA & UEJF's activities within the US
• The claim of jurisdiction must be "reasonable"

The Appellate decision

The 9th Circuit Appellate court, ruling en banc, held that the US likely did have jurisdiction in the case against LICRA and UEJF, specifically because of LICRA and UEJF's actions against Yahoo US in French court. BUT the case was directed to be "dismissed without prejudice", as it was not yet ready to be decided. It was not in fact "ripe"; there was no active controversy.

(same thing happened to US v Warshak, when the 6th circuit en banc ruled the question was not "ripe")

The appellate decision was based squarely on the idea that Yahoo US insisted that its change of policy regarding the sale of "hate" artifacts was not related to the French case. As a result of that, Yahoo could not show that their speech was in any way chilled. Therefore, there was no actual controversy. The Appellate court also took into account the lack of interest on the part of LICRA and UEJF of pursuing the penalties. Finally, paradoxically, the Appellate court hinted that Yahoo could not really have believed that, if LICRA or UEJF did ask for penalties, that any US court would have gone along; any US court would reject such a judgement (perhaps on First Amendment grounds despite the 9th circuit's wording here):

Ironically, because Yahoo took the ethical approach of banning the sale of hate materials, their legal case became moot.

Judge William Fletcher:

1. Here is a summary of Yahoo's position:

For its part, while Yahoo! does not independently wish to take steps to comply more fully with the French court’s orders, it states that it fears that it may be subject to a substantial (and increasing) fine if it does not. Yahoo! maintains that in these circumstances it has a legally cognizable interest in knowing whether the French court’s orders are enforceable in this country.

2. The French court did not ask for restrictions on US citizens. If geolocation filtering works, in other words, the issue is moot:

The underlying theory here is that the worldwide scope of a website is not a given.

3. Maybe Yahoo is ok in France. (Note, however, that the uncertainty still hangs over Yahoo.)

At other points, Judge Fletcher uses the fact that neither LICRA nor UEJF have taken further steps as additional evidence that there is no "active controversy". Another sentence along this line is

And here's the kicker, dismissing the "chilled speech" issue:

The First Amendment applies in the US, not in France. Not that Judge Fletcher doesn't get this:

But:

That, of course, was due to Yahoo's ethical decision not to allow the sale of hate materials.

Judge Fletcher then states

The first phrase here, about French users, was omitted by some sites that reported on the decision [including me -- pld]; that omission decidedly changes Fletcher's meaning, which is that the First Amendment does not necesarily protect French users.

Fletcher concludes with the following, implicitly addressing Yahoo's issue that they were still allowing the sale of Mein Kampf in violation of the French orders:

These issues led to the declaration of non-ripeness.

This is a JURISDICTIONAL case that was left undecided, officially, though the Ninth Circuit certainly hinted that France did not have authority to demand restrictions on US speech.

At about the same time, there was growing improvement in advertising-based geolocation software (IP addr -> location); the earlier blocking estimates rose from 70% to well over 90%.

Illinois Eavesdropping Law

Corporate Cybersmear

Here is the essential problem:

• an employee posts something critical at a site, "anonymously"
  
• the employer sues the site, claiming libel
  
• the site caves, and provides real identity of poster
  
• the suit is dropped, and the poster is FIRED.

This is a significant issue in the "free speech" of employees. Note how giving providers an easy way to get libel cases dismissed via summary judgement makes this strategy for corporations much more difficult.

Supposedly Apple employees are fired if they write about Apple online anywhere.

In 2004, some bloggers announced new Apple rumors. In this case, apparently the rumors were accurate, and involved inside information from Apple employees. Apple sued, in the case Apple v Does, for the identities of the insiders. Apple argued in court that bloggers were not covered by the California shield law, and that even if they were they must still divulge the identities of their contacts. The trial court ruled in Apple's favor in 2005; the California Court of Appeals reversed in 2006. From the 2006 decision:

See http://www.chillingeffects.org/johndoe/faq.cgi

Note that the issue here is the use of the legal system to find identities of anonymous posters. Baase has an extensive section on anonymity.

What about employee bloggers?

• They are free to speak
  
• Their employers are free to fire them

Is source code speech?

Well, is it?

Cases where it's been debated:

• encryption
  
• DMCA anti-circumvention (eg deCSS)
  

For a while, the NSA (National Security Agency) tried very hard to block even publication of scientific papers. They would issue "secrecy orders".

But eventually the government's weapon of choice was ITAR: International Trade in Armaments Regulations

Suppose you make F-16 fighters. You need a munitions export permit to sell these oversees. What about if you make open-source encryption software? You need the same kind of permit! Even if you GIVE IT AWAY!!

BOOKS were exempt. The rule applied only to machine-readable forms. For a while, there was a machine-readable T-shirt with the RSA encryption algorithm on it.

Discussion: does it make any sense to ban the online source code, if a book in which the same code is printed can be freely distributed?

Zimmermann case

Phil Zimmermann released PGP ("Pretty Good Privacy") as an open-source project in 1991. The government made him promise not to do it again. Zimmermann's associates outside the US released the next version. Zimmermann was under indictment for three years, but charges were eventually dropped.

PGP later became a commercial software company, but not before aiding in the creation of the OpenPGP standard (and allowing that use of the PGP name). The open-source version is now GPG (Gnu Privacy Guard).

Schneier case

In 1994 Bruce Schneier wrote a textbook Applied Cryptography. All the algorithms were printed, and also included verbatim on a 3.5" floppy disk in the back of the book. Phil Karn (of Karn's Algorithm for estimating packet RTT times) applied for an export license for the package, also in 1994. It was granted for the book (actually, the book needed no license), but denied for the floppy.

Discussion: does this make sense?

Some of Karn's notes are at http://www.ka9q.net/export.

Bernstein case

Daniel Bernstein created a cipher called "snuffle". In 1995, while a graduate student at UC Berkeley, he sued to be allowed to publish his paper on snuffle and to post it to the internet. In 1997 the district court ruled in his favor. In 1999 a 3-judge panel of the 9th circuit ruled in his favor, although more narrowly. Opinion of Judge Betty Fletcher:

http://epic.org/crypto/export_controls/bernstein_decision_9_cir.html

Prior-restraint was one issue
Bernstein's right to speak is the issue, not foreigners' right to hear

But does source code qualify? see p 4232: C for-loop;  4233: LISP

Snuffle was also intended, in part, as political expression. Bernstein discovered that the ITAR regulations controlled encryption exports, but not one-way hash functions such as MD5 and SHA-1. Because he believed that an encryption system could easily be fashioned from any of a number of publicly-available one-way hash functions, he viewed the distinction made by the ITAR regulations as absurd. To illustrate his point, Bernstein developed Snuffle, which is an encryption system built around a one-way hash function. (Arguably, that would now make Snuffle political speech, generally subject to the fewest restrictions!)

Here is Judge Fletcher's main point:

Thus, cryptographers use source code to express their scientific ideas in much the same way that mathematicians use equations or economists use graphs. Of course, both mathematical equations and graphs are used in other fields for many purposes, not all of which are expressive. But mathematicians and economists have adopted these modes of expression in order to facilitate the precise and rigorous expression of complex scientific ideas.13 Similarly, the undisputed record here makes it clear that cryptographers utilize source code in the same fashion.

Government argument: ok, source code might be expressive, but you can also run it and then it does something: it has "direct functionality"

Fletcher: source code is meant, in part, for reading. More importantly, the idea that it can be banned due to its "direct functionality" is a problem: what if a computer could be ordered to do something with spoken commands? Would that make speech subject to restraint? In some sense absolutely yes; if speech became action then it would be, well, actionable (that is, something that could be legally prohibited).

In 1999, the full 9th circuit agreed to hear the case; it was widely expected to make it to the supreme court.

But it did not. The government dropped the case.

The government also changed the ITAR rules regarding cryptography, and Bernstein continued to appeal. In 2003 a judge dismissed the case until such time as the government made a "concrete threat".

Junger v Daley

Peter Junger was prof at Case Western Reserve University. He wanted to teach a crypto course, with foreign students.

6th circuit:

The district court concluded that the functional characteristics of source code overshadow its simultaneously expressive nature. The fact that a medium of expression has a functional capacity should not preclude constitutional protection.

Because computer source code is an expressive means for the exchange of information and ideas about computer programming, we hold that it is protected by the First Amendment.

BUT: there's still a recognition of the need for balancing:

DeCSS case

There are several; the best known is Universal Studios v Reimerdes, Corley, and Kazan. Eric Corley, aka Emmanuel Goldstein, is the publisher of 2600 magazine.

Corley:

DeCSS was developed in ~1999, supposedly by Jon Lech Johansen. He wrote it with others; it was released in 1999 when Johansen was ~16. He was tried in Norway in 2002, and was acquitted.

Cute story about Jon: In 2005, supposedly Sony stole some of his GPL-covered code for their XCP "rootkit" project. Jon might have been able to sue for huge damages (though the usual RIAA-lawsuit standard is based on statutory damages per item copied, and here only one thing was copied). More at http://news.slashdot.org/story/05/11/17/1350209/dvd-jons-code-in-sony-rootkit

Judge Kaplan memorandum, Feb 2000, in Universal v Reimerdes:

As a preliminary matter, it is far from clear that DeCSS is speech protected by the First Amendment. In material respects, it is merely a set of instructions that controls computers.

He then goes on to consider the "balancing" approach between free speech and regulation, considering the rationale for the regulation and the relative weights of each side.

The computer code at issue in this case does little to serve these goals [of expressiveness]. Although this Court has assumed that DeCSS has at least some expressive content, the expressive aspect appears to be minimal when compared to its functional component. Computer code primarily is a set of instructions which, when read by the computer, cause it to function in a particular way, in this case, to render intelligible a data file on a DVD. It arguably "is best treated as a virtual machine . . . ."

[the decision cites Lemley & Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, Duke Law Journal 1998. However, the sentence in Lemley and Volokh's paper explicitly refers to executable object code, not source! "The Bernstein court's conclusion, even if upheld, probably doesn't extend past source code to object code, however. We think most executable software is best treated as a virtual machine rather than as protected expression." Judge Kaplan apparently did not grasp the distinction.]

Note that this virtual-machine argument renders irrelevant the Bernstein precedent! Actually, the virtual-machine argument pretty much presupposes that you have come down solidly on the side of code-as-function instead of code-as-expression.

Also note the weighing of expression versus functionality, with the former found wanting.

Do you think that Judge Kaplan was stricter here than in the crypto cases because crypto was seen as more "legitimate", and deCSS was clearly intended to bypass anticircumvention measures?

The district court issued a preliminary injunction banning 2600.com from hosting DeCSS; the site then simply included links to other sites carrying it. The final injunction also banned linking to such sites, and included language that equated linking with trafficking.

Universal v Reimerdes, Appellate Court

The Appellate decision was similar to Judge Kaplan's District Court opinion, though with somewhat more on the constitutional issues, and an additional twist on linking. Also, note that one of Corley's defenses was that he was a journalist, and

However, in full context, that idea was harder to support. Corley's mistake was in describing DeCSS as a way to get free movies. What if he had stuck to the just-the-facts approach, and described exactly how easy it was to copy DVDs without actually urging you to do it? Is this similar to the "Grokster" workaround?

Both the DC and Appellate courts held that the DMCA targets only the "functional component" of computer speech.

One argument was that the CSS encryption makes Fair Use impossible, and that therefore the relevant section of the DMCA should be struck down. The appellate court, however, ruled instead that "Subsection 1201(c)(1) ensures that the DMCA is not read to prohibit the 'fair use' of information just because that information was obtained in a manner made illegal by the DMCA". Subsection 1201(c)(1) reads

(c) Other Rights, Etc., Not Affected. — (1) Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.

This is an interesting argument by the court! Literally it is correct, but the practical problems with Fair Use access go unaddressed.

Some notes on the free-speech argument:

The court also acknowledged Junger v Daley (above).

However:

That is, the DeCSS code may be said to be "expressive speech", but it's not being banned because of what it expresses.

As for hyperlinks (in the section "Linking"),

What if one simply printed the site name, without the link: eg cs.luc.edu? For links, one can argue that the expressive and functional elements -- what the other site is, and how to get there -- are inseparable.

The non-linking rule may become more of an issue as time goes on and the US attempts to remove from the DNS system sites which provide illegal access to copyrighted material. In the future, identifying a new IP address for, say, the now-seized megaupload.com may be suspicious.

Gallery of DeCSS: http://www.cs.cmu.edu/~dst/DeCSS/Gallery
Check out these in particular:

• haiku page
• page1.gif
  
• mathematical description
  
• DVD logo

Does the entire gallery serve to establish an expressive purpose?