Andrew Moshirnia's blog

Things aren't looking good for the American public. While Americans generally love the idea of being tough on crime, I doubt grandmothers want to ardently police the online habits of their grandchildren. But surprise, surprise, the negotiators hammering out the details on the Anti-Counterfeiting Trade Agreement (ACTA) have placed a three-strikes Internet ban on the agenda. This move essentially threatens users with Internet death if anyone uses their connection for ill. This is not a good sign.   read more »

No man is an island, no man stands alone
Each man's joy is joy to me
Each man's grief is my own
We need one another, so I will defend
Each man as my brother
Each man as my friend
  read more »

Predictability is important when it comes to the law. Citizens should know what sort of punishment they should expect for engaging in criminal behavior. If offends our notions of justice when wildly different sentences are handed down for similar crimes.

So its more than a little disturbing that courts cannot decide whether or not an individual’s criminal acts can justify a ban from the entire Internet. While Circuit splits on the interpretation of criminal statutes are par for course (see, e.g., disagreements as to what constitutes a "violent felony" under the ACCA), the debate over Internet bans rages within one Circuit Court of Appeals. The latest ruling by the Third Circuit appears to be its third change of course in the last decade, undermining our understanding of and confidence in Internet prohibitions.

Like its sister Circuits, the Third Circuit has been struggling with the idea of banning Internet access for sex offenders.  The logic goes something like this: because convicted sex offenders might use the Internet to exploit children, sentencing courts may simply outlaw their access to the Internet. Of course, an offender might also use a car or a telephone to exploit a child, but these tools haven’t come into the crosshairs just yet.   read more »

I could tell you but then I’d have to kill you. – Tom Cruise, Top Gun

By and large, Internet users are an unstable amalgam of apathy and curiosity. When it comes to policies restricting Internet freedom, the easiest way to attract attention is to try to hide your shifty schemes. When Comcast covertly throttles traffic, we grab our pitchforks and head to Twitter. When Comcast baldly announces a throttling policy, we don’t much care. With that in mind, the Framers of the Anti-Counterfeiting Trade Agreement (ACTA) must desperately want to draw attention to their little endeavor, because they are keeping their negotiations super-duper ultra-secret. But now some villainous public officials are ruining all the fun by demanding some public transparency and accountability. The nerve of some people!   read more »

In recent years, the American public seems to have fallen under the impression that providers and regulators of airline travel have extra-legal powers. These fictional powers typically mean that passengers can be treated like cattle. The evidence for this is legion. My favorite aviation abuse motif is the plane stranded on the tarmac, passengers forbidden to leave, babies crying, etc. (For a good idea of how this sort of false imprisonment impacts passengers, view South Park’s helpful reenactment.) So I think we are all used to stories of the TSA’s ham-fisted ineptitude. But the TSA’s latest misstep, the intimidation and harassment of bloggers, stands out in the Pantheon of Unacceptable and so deserves special attention.   read more »

For a time, few issues could rally nerds as effectively as net neutrality. Whenever we heard those dreaded five syllables, we immediately ceased our latest exegesis of Watchmen and girded our neglected loins for battle.  

But for some of us, after so many false alarms, the threat of losing net neutrality has become something of a digital boogey man. Sure, now and then a corporation will get caught throttling bandwidth, but the chances for a wholesale elimination of neutrality still seem slim. When Comcast began its latest round of throttling, we didn't much care.   read more »

Before the Thanksgiving holiday, Microsoft held talks with News Corp. in an attempt to convince the titan of information to de-list its content from Google. The idea being, if users can only find news on Microsoft’s Bing, then that search engine will beef up its anemic market share (around 10% of search traffic). This idea is so stupid, it is like going up against a Sicilian when death is on the line.

Let me go out on a limb and say that this maneuver has a zero percent chance of succeeding.   read more »

“’It isn’t fair, it isn’t right,' Mrs. Hutchinson screamed, and then they were upon her.”
- The Lottery, Shirley Jackson

In The Lottery, Shirley Jackson explored the interplay of the banal and the barbaric. She described a town’s old-fashioned agrarian ritual: an individual who has drawn a slip marked with a black spot is stoned to death in order to ensure a good harvest. While many filmmakers have attempted to update the story, their efforts were ultimately unnecessary – we bear witness to a similarly atavistic ritual.

The entertainment industry is a superstitious animal. Since I can remember, it has held a lottery: selecting at random file sharers to pelt to death with stones marked TORT and BREACH. Though the human sacrifice doesn’t seem to do much, the industry has continued the practice year after year. This is how it had always been. Though peculiar, this practice seems to elicit only mild revulsion in outsiders.  That is, until last week, when the lottery suddenly changed .  .  .    read more »

[A]ll it takes to kill a show forever, is to get one episode pulled. If we convince the network to pull this episode for the sake of Muslims, then the Catholics can demand a show they don't like get pulled . . . and so on and so on, until Family Guy is no more - it's exactly what happened to Laverne & Shirley.- Eric Cartman, South Park , Cartoon Wars I

It doesn’t take much to whittle away a law. One need only use the Cartman technique – ask for one exception and wait for others to follow. It is death by a thousand cuts on the legal stage.   read more »

Last week was a tough one for Internet users worldwide. On the foreign front, the French (as predicted) reinstituted a due-process-shattering law that allows ISPs to kick suspected file-sharers off the Internet.  On the domestic side, a district court refused to lift a government gag order, preventing ISPs from discussing the FBI’s Internet snooping. Separately, each of these events is a bummer, but taken together they threaten the Internet as we know it by inviting abuse from both private industry and government.

As you may recall, the French government (with a little encouragement from the entertainment industry) has previously attempted to do away with the entire notion of due process vis-à-vis the Internet. The HADOPI law would have allowed ISP’s to strip Internet access from users who were accused of file sharing. The French Socialist party challenged the law, arguing that access to the Internet was a basic right that could not be violated without judicial oversight. The Conseil Constitutionnel agreed and declared the banning provision unconstitutional.   read more »

Between sparkling vampires and slobbering zombies, the Undead have found new life at the box office these days. So it makes sense that the MPAA, inspired by the success of the long deceased, has decided to resurrect the odorous, oft-defeated idea of “selectable output control.” We can only hope and pray that the FCC will shoot this idiotic (but dangerous) idea in the head, and grant consumers a brief respite (before the inevitable sequel). For those of you who are unaware of the movie industry’s idiotic plan to castrate and consume your DVR, allow me to shine a light on the lumbering terror.   read more »

While a number of businesses and organizations are initiating public service campaigns to combat cyberbullying, governments are realizing the utility of online shaming.

In response to a rash of recent suicides, the French Labor Minister, Xavier Darcos, has directed over two thousand French firms to craft anti-stress strategies with the aid of unions by 2010.  Companies who do not have a plan in place by the deadline will be named publicly on a dedicated government website.

Now right off the bat, let’s acknowledge that this approach to suicide is fairly awesome. First, the government is aggressively addressing an insidious problem. Second, a public listing seems to be the only sanction for those companies that fail to comply.  We’re bringin’ shaming back!   read more »

On this blog, I typically write about frivolous or ill-considered lawsuits. In the long, long ago, before I came to law school, I wrote about video games. So imagine my unbridled joy upon reading that Jack Thompson (think: King Richard I of the Anti-Video Game Crusade) filed a pointless, dead-end  lawsuit against Facebook.  Let the Games Begin!   read more »

I'm pretty sure I can struggle my way out. First I'll just reach in and pull my legs out, now I'll pull my arms out with my face. – Homer J. Simpson, The Simpsons, Bart Gets An Elephant, 1F15

Weaseling out of things is important to learn. It's what separates us from the animals! . . . except the weasels.  – Homer J. Simpson, The Simpsons, Boy Scoutz ‘N the Hood, 1F06

I provide these quotes because I can only assume that ACORN has retained Homer Simpson as its general counsel (R.I.P. Lionel Hutz) in what may be the most ill-considered lawsuit of all time.  The cartoon patriarch doesn’t know when to quit and thinks that responsibility can always be shirked. After learning of ACORN’s decision to sue James O’Keefe, Hannah Giles, and breitbart.com for wiretapping, I concluded that the disgraced community organization shares Homer’s sensibilities.

Background: The Association of Community Organizations for Reform Now (ACORN) is an amalgam of several organizations and non-profits that serve low- and middle-income populations. ACORN’s support of Democratic candidates and Left-leaning policies, as well as allegations of financial and electoral misconduct, have earned ACORN the ire of conservatives.    read more »

A basic lesson of history: a spoonful of cute helps the social medicine go down.

Bert the Turtle prepared us for Global Thermo-Nuclear War. Bugs Bunny and Donald Duck helped us hate the Nazis and (briefly) like Stalin. Now Google has harnessed the power of cute to sell Google Street View.  I think the approach will work in Japan and America, for Europe I’m not so sure.   read more »

A little while back, I wrote about the Iranian persecution of bloggers and opponents of Mahmoud Ahmadinejad. There is so much evidence of this systematic assault on liberty that it was difficult to pick just one Exhibit A. I finally settled on the before and after pictures of Mohmmad Ali Abtahi, which showcased the effects of torture on a former vice president and leading cleric-blogger. The image of a formerly rotund, sanguine Abtahi transformed into that of a haggard immate seemed the easiest way to confirm allegations of mistreatment of political detainees.

No so fast, said Abtahi’s jailers. According to the New York Times, Ali Akbar Javanfekr, President Ahmadinejad’s adviser for press affairs, said that these pictures point not to torture but to self-improvement derived for deep contemplation. Javanfekr, apparently with a straight face, argued that “[i]t is only natural for a person who has gained an excessive amount of weight to come to his senses in prison that being overweight is not good for your mental or physical health.”   read more »

Let’s review the two basics of modern criminal law:

1. The law punishes you for your individual crimes, not the crimes of your ethnic, religious, or kin group. If your father kills someone, you don’t follow him to jail. (Usually.)
2. The law does not take away your freedom or valuable property without giving you some sort of reasonable pre-deprivation hearing. (Think a trial, see Mathews v. Eldridge, 424 U.S. 319 (1976)).

I’m sorry to bore you with these mundane/obvious details, but it seems that various governments have forgotten these simple rules when it comes to crafting cyberlaw.

You might recall the Internet-banning HADOPI law that made the rounds in France before being defeated by the Socialists. That law sought to block users from the Internet if they had been accused (not convicted) of illegal file sharing. The Conseil Constitutionnel struck it down, holding that Internet access was a fundamental right.   read more »

It’s rarely a good sign when a series grows beyond a trilogy. You end up with pod racing, fridge nuking, and Winona Ryder.  So I was happy to stop writing about privacy on social networks after the cyber-possession trilogy: the Facebook snatching government employers in Bozeman, the MySpace lurking managers of Houston’s, and the Twitter brandjacking PR Firms.  So imagine my double displeasure when I found out that the Florida Board of Bar Examiners decided to start demanding access to the Facebook accounts of red-flagged applicants.

Damn it, FBBE. This is why we can’t have nice things.   read more »

 

Wikipedia is growing up and exercising more control over its content. In years past, the free encyclopedia provided me with such jewels as an exegesis of Smurf Communism (long since removed). More importantly, Wikipedia helped keep us at CMLP busy, by serving as the equivalent of a libeler’s attractive nuisance, providing an easily accessible platform for defamers the world over.  The defamed would sue their defamers, and often (futilely) go after Wikipedia as well, providing us with a bevy of opportunities to document the “hey-isn’t-this-strange” legal threat and the general ignorance of Section 230.

But all good things must come to an end. Yesterday, the Wikipedia Foundation announced that the English-Language site would now flag all proposed edits to * currently locked pages of live individuals.  Contributors used to the intoxicating immediacy of Wikipedia editing might need to get used to waiting * for editor approval. This system has already been in place for a year in the German-Language Wikipedia (ah, those order-loving Germans).     read more »

 

 

The memory of pain can be one of the best painkillers. Anyone who has had the misfortune of enduring acute physical agony has later repurposed that nightmare as a psychic analgesic. “This needle might hurt, but it's nothing compared to that time I broke my arm. I can do this.” Previous extremes make the mild more bearable. This holds true for a surprising number of situations: long plane delays, expensive fines, and now sex-offender Internet bans. (Don’t worry if that last category didn’t make too much sense, I’m just about to explain.)

A week ago, Illinois Governor Pat Quinn signed a bill, HB 1314, making it illegal for convicted sex offenders to access a “social networking website,” defined as:   read more »