The conviction of Lori Drew, the mother whose  Myspace impersonation of a 13-year-old boy was followed by the suicide of Megan Meier, has been set aside by the judge in the case.  There being no anti-cyberbullying statute ore anything else under which she could be charged in Missouri, where she and Meier lived only a few blocks apart, a federal prosecutor in California (where MySpace is located) charged her under a federal law meant to criminalize hacking into bank accounts and credit card sites. The prosecutor reasoned that lying to MySpace on its registration form was sort of the same thing. By that standard, as we noted on this blog, everybody would be a federal criminal — especially as most social networking sites reserve the right to change their terms of service without telling you. And that is exactly the reasoning Judge Wu used in dismissing the case, even though a jury had returned a guilty verdict. You can’t throw someone in jail under an interpretation of a statute so broad that pretty much everyone would be eligible for incarceration. It’s unconstitutional.

There are legal questions here that I am sure are going to be analyzed. Would jury nullification have been a possibility here, had some juror spoken up to say that the statute was ridiculous if this is what it implied? If not that, what should the jury have done?

But the scary part is the prosecutor’s explanation for what he acknowledges was a “risky’ strategy. He heard a cry “for someone to do something,” and he responded. In other words, he thinks there are parallel universes, the universe of law and the universe of justice. His job is to figure out what’s just and to find a law that can be stretched to fit the facts. That is a really scary attitude on the part  of a federal prosecutor. Lori Drew perhaps should fry in hell, but that is not the business of the temporal sphere. Missouri should perhaps rewrite its laws to make it easier to prosecute the next cyberbully, and the legislature has in fact done that. But if it were the job of the state’s attorneys to decide what is right and wrong independent of the laws, we wouldn’t need the laws at all, we could just rely on their judgment of good and evil.  That’s not how democracies work.

The Department of Justice has now confirmed rumors that it was taking an interest in the draft settlement between Google and the Authors and Publishers, now before federal judge Denny Chin (who just sentenced Bernie Madoff to 150 years). Presumably the question for the DOJ is whether the proposed settlement is anti-competitive; Google responds “It’s important to note that this agreement is non-exclusive and if approved by the court, stands to expand access to millions of books in the U.S.” Which is true, but may well not be sufficient to avoid anti-trust issues.  See the Digital Daily post here, which includes a link to the actual correspondence between the government and Judge Chin. Judge Chin notes that he is still planning to hold a Fairness hearing on October 7, and if the government wants its views known in writing, it has to submit something by September 18.

The Register has a fascinating report on a new phenomenon, arising from the conjunction of stiff copyright laws and the zero-cost copying those laws were meant to combat, insofar as the works copied were under copyright. People are making copies of works in the public domain and slapping their own copyright notice on them, and then charging money for them. The article describes the use of this technique for some 19th century Japanese books. But why would anyone pay for them when they are in the public domain? Because it may be safer to do so rather than run the risk that you are wrong about the claimed copyright ownership. This scam hits universities hard, because they have proved to be attractive targets for copyright lawsuits and are likely to err on the side of paying (or, to be specific, having their students pay).

But what could be the business model for the scammers? After all, what if they publish books and no one buys them? No problem — they issue the books as print-on-demand volumes through Booksurge. They have no costs until the first copy gets ordered. There is not much incentive for Amazon (which owns Booksurge)_ to crack down.

We blogged awhile back about the Obama administration’s misunderstanding of the fact that White House photos are in the public domain (The White House Confused PhotoStream). No scam intended there, to be sure, but it’s an indicator of how the public domain will continue to get restricted if people don’t fight back. Oddly, Creative Commons (under which Blown to Bits is licensed for free download on this site) is now getting into the act, apparently on the wrong side.As the Register reports,

Now Creative Commons seeks expanded authority to administer the Public Domain, by issuing a “Creative Commons Public Domain License,” as if it was a sublicense of its own invention. Creative Commons is trying to expand its licensing authority over not just newly created works, but all public domain works.

Very odd. I hope someone will correct the Register, if they have the story wrong, or correct Creative Commons, if it’s right.

Added June 29: Creative Commons says the Register is wrong. CC says,

Creative Commons does not have any “authority to administer” the public domain, whatever that means. Our public domain tools are not licenses — there is no “Creative Commons Public Domain License”. CC0 is a waiver that allows a copyright holder, to the extent possible, to release all restrictions on a copyrighted work worldwide. The Public Domain Certification facilitates clearly marking works already in the public domain as such. We also don’t have “licensing authority” over newly created works. All of our tools are voluntary and have an over-arching goal of expanding the commons, more specifically the public domain in the case of CC0 (as much as possible) and the Public Domain Certification (the effective public domain, by making existing public domain works more clearly marked, including with metadata, making them more available and discoverable).

Harvard Magazine has reprinted my comments on the death of the printed course catalog at Harvard in the July-August issue.

The City of Bozeman, Montana is demanding that those applying for jobs supply passwords for their accounts with social networking sites such as Facebook and Myspace, apparently so the City can check out what kind of acquaintances they have. What about the guarantee in the Montana constitution, which states, “the right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest”? Well, says the City’s attorney, that has to be balanced against the need “to make sure the people that we hire have the highest moral character and are a good fit for the City.” Montana is a funny state, not as individualistic as the mythology of Western America might make you think. Nor are Facebook and Myspace as private as their terminology may lead users to expect. Still, I’m guessing the city won’t keep this practice up long — for one thing, “good fit” tests are easily abused, and for another, these sites typically have a term of service such as (to quote Facebook’s) “You will not share your password, let anyone else access your account, or do anything else that might jeopardize the security of your account.”

In Blown to Bits we spend all of Chapter 5 making the argument that (a) perfect secrecy is possible through public key encryption and (b) almost no one encrypts their email anyway. Why this would be the case is one of those small mysteries of the universe. Few of us actually know people who know that their email has been read, but most of the time we’d have no way to know that. If you are sitting in Starbucks and the guy with the double mocha latte is running a packet sniffer, you’d never know the difference.

Today’s New York Times has the kind of story that might lead more people to take the issue seriously. It seems likely that the NSA is snooping on more email than they’d like to admit. The simple fact that the cost of surveillance has plummeted in itself makes abuse more likely. (THe NSA doesn’t need to loiter at Starbucks. They can get access to ISPs’ switching equipment.)

If you use Google’s Gmail, you can encrypt all your mail. The preference setting is pretty obscure, and you have to opt-in: the default is no encryption. Chris Soghoian, I, and a number of other computer scientists and security experts have just called on Google to make encryption the default. Our letter explains it all: You can read it here.

The French anit-piracy law, adopted in France on the basis of strong support from President Sarkozy, has been declared unconstitutional The logic is elegantly simple and equally applicable in the UDS. … “Internet est une composante de la liberté d’expression et de consommation… en droit français c’est la présomption d’innocence qui prime”  – “The Internet is a coomponent of the freedom of experssion and of consumpton … In French law it’s the presumption of innocence that prevails.” (Well, OK. So there is no “freedom of consumption” in the US Constitution, as far as I know!)

THanks to Carolinna Rossini for the pointer.

A couple of weeks ago there was minor epidemic of news about a report out of Ohio State University claiming that students who used Facebook get lower grades. Even the earliest reporting of this story drew skeptical comments (here is one from April 15 in the Ohio State U’s student newspaper). OK, so students would always be skeptical about anti-student news; but on April 21, the Wall Street Journal expressed its skepticism too. No matter; it was the story a lot of people wanted to hear, and it spread faster than the Swine Flu. Another reason to fear and hate the Internet.

Now Eszter Hargittai of Northwestern U and the Berkman Center, working together with two colleagues, has re-done the study with a large database of students and found … no relation at all between Facebook use and grades. Or maybe a small POSITIVE correlation. 

Bet this story won’t go viral.

We make that argument (which we learned from a paper by Larry Lessig and Yochai Benkler) in Chapter 8 of Blown to Bits. The outcome of the Supreme Court case of Fox v. FCC, decided this week, suggests that the line of reasoning we outline has some traction on the Court.

The case, stimulated by Cher’s use of the F-word and Nicole Richie’s use of the S-word, was decided 5-4 in favor of the FCC, which would at first blush make it look like a loss for free-speech libertarians. But the case was decided on narrow administrative grounds; the only question on which the court took a position was whether the FCC had properly promulgated a reasonable regulation (its higher standard prohibiting even fleeting use of expletives at times when children were likely to hear them). The constitutional question of whether that regulation of free speech is in violation of the First Amendment the court let stand.

But the four in the minority seem not to support the restriction of broadcast speech at all. And one of the majority seems inclined in the same direction. That would be Justice Thomas. Although we might have expected him to have the least patience with foul speech on television, he takes the opportunity of writing his own opinion, concurring with the majority in its vote on the administrative question, but making plain that technological changes have shaken the court’s prior reasoning on the constitutional question.

The case has been sent back to the lower court, which will have to take up the constitutional question. Whatever it decides, if the decision is appealed, the Supreme Court may have an opportunity to come down once and for all on the federal government’s right to censor broadcast television.

A few passages from Justice Thomas’s opinion (full opinions here):

even if this Court’s disfavored treatment of broadcasters under the First Amendment could have been justified at the time of Red Lion and Pacifica, dramatic technological advances have eviscerated the factual assumptions underlying those decisions. Broadcast spectrum is significantly less scarce than it was 40 years ago. …

Moreover, traditional broadcast television and radio are no longer the “uniquely pervasive” media forms they once were. For most consumers, traditional broadcast media programming is now bundled with cable or satellite services.… Broadcast and other video programming is also widely available over the Internet. …  And like radio and television broadcasts, Internet access is now often freely available over the airwaves and can be accessed by portable computer, cell phones, and other wireless devices. …

These dramatic changes in factual circumstance swell support a departure from precedent ….

John Markoff of the New York Times has an excellent article about software that is being used in oppressive regimes to enable access to web sites that are blocked or censored by government officials. Interestingly, the Falun Gong followers are the leaders; they have multiple servers supporting their workarounds. For a time they were letting Iranians use the same servers, until the Iranians overwhelmed the capacity of the servers. Rather than allowing the service degradation to make the software unusable, it’s been restricted to use by Chinese.