Sorry for the break in blogging; I’ve been focused on some other projects, including getting out the final versions of my article about criminal prosecution of filesharing services. A long-form version will appear in the North Carolina Journal of Law and Technology later this month, and a shorter discussion of the topic was published this week in the inaugural online edition of the Santa Clara Computer & High Technology Law Journal. Please feel free to check it out and leave comments.
I recently finished “The Internet Police: How Crime Went Online, and the Cops Followed” by Nate Anderson, who writes for Ars Technica, and I loved it. I found his writing compelling and the stories fascinating. I’m sure that my being a lawyer influenced the book’s appeal for me, as Anderson has a particular focus on legal proceedings. In chapter 8, for example, he discusses being the only reporter to sit through the entire retrial of a lady sued for copyright infringement. Anderson’s familiarity with the law shows throughout the book. He was generally spot on in his discussion of legal topics, and I especially appreciated how he highlighted the important role for federal judges in shaping society’s approach to technology. In fact, federal legal proceedings or decisions take center stage in roughly half of the book’s chapters.
The chapters are helpfully broken down based on topics, and each one tracks a major story throughout the whole chapter. I particularly enjoyed the discussion of the federal takedown of the child-pornography website “The Cache” (chapter 2), and the efforts to take out Sanford “Spamford” Wallace (chapter 7). Further, the story of “Sealand” and HavenCo, which I had not been familiar with, was very entertaining (chapter 1). The section on copyright infringement also interested me because it touched on many of the same issues discussed in my upcoming article about Megaupload.
As for general themes in the book, one consistent emphasis is how private parties often lobby the federal government to take over efforts to police online activity because of the government’s perceived greater resources. Another is how the tools developed by online criminals are the same tools (with the same threat to privacy) law enforcement uses to track criminals down.
Finally, I liked Anderson’s discussion of the balance of chaos versus regulation on the Internet, and the pros and cons of swinging too far in either direction (too much chaos=child porn, credit-card fraud; too much regulation=no innovation, no privacy). His summary of this balance near the end of the book nicely showcases what could be called the book’s thesis: “Life is messy business on the Internet as it is everywhere else, and we’re never going to engineer the mess out of it. That doesn’t mean we ever accept crime, piracy, or boorish behavior, but we tolerate them online just as we tolerate a certain amount of drunk driving, tax fraud, or jaywalking. Many such problems could be nearly eliminated if we just tried hard enough—required breath tests before every car start, conducted audits on every tax return, posted cops at every corner. But the cost of total order is totalitarianism; the real challenge is making prudential judgments about how we weigh risks and rewards, costs and benefits, order and chaos.”
Ben Austen, who wrote the article, interviewed people on the ground in Chicago: community leaders, local rappers and gang members, and cops. I’ll just flag a few tidbits I found interesting; I encourage you to check out the whole article.
First, Austen starkly describes the difficulties facing Chicago law enforcement:
Last year more than 500 people were murdered in Chicago, a greater number than in far more populous cities such as New York and Los Angeles. The prevalence of gun crimes in Chicago is due in large part to a fragmentation of the gangs on its streets: There are now an estimated 70,000 members in the city, spread out among a mind-boggling 850 cliques, with many of these groupings formed around a couple of street corners or a specific school or park.
Second, for fans of The Wire, the HBO crime drama that ran from 2002 to 2008, Austen explains how the show’s depiction of gang-life, praised at the time for its “realistic portrayal of urban life,” is already outdated:
Harold Pollack, codirector of the University of Chicago Crime Lab, says that in every talk he gives about gangs, someone inevitably asks him about The Wire—wanting to know who is, say, the Stringer Bell of Chicago. But The Wire, based in part on David Simon’s Baltimore crime reporting in the 1980s and ’90s, is now very dated in its depiction of gangs as organized crime syndicates. For one thing, Stringer Bell would never let his underlings advertise their criminal activities, as a Central Florida crew did this spring when it posted on its public Facebook page that two of its members had violated their parole and been arrested for posing with guns on their personal Facebook pages. Even a few years ago, a member of, say, the Disciples would have been “violated”—physically punished—for talking about killings or publicly outing a fellow member. But today most “gangs” are without much hierarchical structure, and many of the cliques are only nominally tied to larger organizations.
Third, in telling a story about how police warned the family of a 12-year-old that Keef’s crew was posting threatening comments on a video the boy had posted insulting Keef, Austen touches on how “predictive policing” is far less exotic than critics often allege:
For a long time, criminal-justice experts have talked about predictive policing—the idea that you can use big data to sniff out crimes before they happen, conjuring up an ethically troublesome future like the one depicted in Steven Spielberg’s Minority Report. But in Chicago and other big cities, police are finding it’s much easier than that. Give people social media and they’ll tell you what they’re about to do.
Finally, Austen observes that insulting a rival crew is “so much easier to do online than face-to-face.” This comment, interestly, echoes the heartbreaking-but-hilarious interview Louis C.K. did this week with Conan O’Brien about why he won’t let his kids have smart phones: “They look at a kid and they go, ‘you’re fat,’ and then they see the kid’s face scrunch up and they go, ‘oh, that doesn’t feel good to make a person do that.’ But they got to start with doing the mean thing. But when they write ‘you’re fat,’ then they just go, ‘mmm, that was fun, I like that.’”
News broke this week that Chicago is planning to amp up its vacant-property-maintenance requirements.
The new amendments were announced by Mayor Rahm Emanuel and Alderman Jo Ann Thompson after the city received a rash of calls about maintenance problems with vacant buildings. Most significantly, the changes would require lenders and owners to secure vacant property immediately, rather than the current allowance of 30 days. Also, the proposal would allow Chicago to issue fines after just one inspection, rather than two as current law provides. According to the Chicago Tribune, this amendment “is designed to trim to two months from three the process of citing a building owner and getting the case before a hearing officer, as well as to save manpower.”
Interestingly, this announcement comes on the heels of a ruling that the Federal Housing Finance Agency doesn’t have to comply with Chicago’s registry program for vacant buildings, exempting a large number of properties with mortgages owned by Freddie Mac or Fannie Mae.
As we wait for Congress to revamp the Electronic Communications Privacy Act (of 1986!), a few states are taking the lead in setting privacy laws.
One of the recognized problems with the ECPA is that it does not require a warrant for law enforcement to search opened email, or unopened email that is more than 180 days old. This year, the Justice Department conceded that “there is no principled basis to treat e-mail less than 180 days old differently than e-mail more than 180 days old,” and that “it makes sense that the statute not accord lesser protection to opened e-mails than it gives to e-mails that are unopened.”
The first state to enact stronger protections has been Texas, which in June passed HB 2268, which requires warrants for state and local officials to access email.
Montana similarly enacted HB 603, which restricts the ability of law enforcement to access email or cellphone-location data without a warrant. Amusingly, according to Brian Fung in the Washington Post, “many Montanans had no idea they had become pioneers in privacy law,” likely because of their deep-seated views on the importance of privacy. Maine also enacted laws requiring warrants to access text messages and geolocation data (the latter even in spite of a veto from the governor).
Notably, as observed by Ryan Gallagher in Slate, both Maine and Montana rejected the Justice Department’s view that warrants should be required for tracking cellphone locations in real-time but not for accessing historic location data.
More state laws are in the works. Officials in New York and Florida will consider privacy bills this year, and the legislature of Massachusetts recently met to review a bill addressing email and geolocation privacy. Without a doubt, these state efforts are essential groundwork for the looming federal debate on this issue.