Infothought

Details of Aaron Swartz Case from Lessig Response Paper

[My withering-away but not-dead-yet blog seems to be turning into all-Swartz all-the-time when I manage to post. But sigh, I feel an emotional connection here.]

In a legal debate over the Aaron Swartz prosecution (does any really need an explanatory link now?), Lessig has posted a response paper which has some interesting details for those who follow the case closely. It's worth reading for its treatment of various claims, via correcting errors in the paper to which he's replying. I'll extract some important parts below.

The first plea deal (everything afterwards was worse) is given as:

The initial offer was (1) 90 days in prison, (2) then time in a half-way house or home detention, (3) two years banned from using a computer, and (4) pleading guilty to a felony. As was discussed with the prosecutor, because of a medical condition, Aaron could not qualify for a "minimum security facility."

Note that computer use ban for two years. That's essentially two years of professional unemployment and isolation these days.

Further, the part of being a convicted Federal felon deserves emphasis. It's not just about being unable to vote or own firearms. It's a huge burden for one's entire life, affecting employment, housing, travel, and more (yes, it would have hurt someone of Aaron's privilege much less than it would, say, a poor black man, no debate there - but it's still immensely destructive).

I suspect this is one of those things which is outside common experience, so simply doesn't enter consciousness when people think about the case. I've seen many comments that assume the downside of a guilty plea would be a few months at most of prison, then he could just put it all behind him (and then some people go on to presume since that wouldn't be so bad, it's obviously irrational not to take the deal, so his suicide must be irrational, end of thought-process). But that calculation is wrong. The downside of a plea includes a certainty of lifelong "Federal felon" damage.

And pleas are not even bounded to the downside in themselves:

I know many advised Aaron to accept the plea. His lawyers warned him that there was some chance the prosecutor would not stick to her offer (in US v. Gonczy, 357 F3d 50 (CA1 2004), she was admonished for promising to support one sentence and then arguing for a more significant penalty), but even so, many viewed the costs of fighting the charge (both the estimated $1 million in legal fees and the threatened penalties if he lost) as greater than admitting his own guilt.

Note, regarding penalties, I've seen several objections to quoting the maximum years of prison of the various felony charges, in terms of this being misleading. Yes, the maximum isn't the average, and almost nobody gets the maximum. But that's sort of the definition of "maximum", i.e. it's the worst possible outcome, not the typical result. HOWEVER, when people then seem to implicitly argue that the value has no relevance, I think there's a severe reasoning error there. To wit: Almost nobody will get the worst case result, but everybody has to worry that it'll be them.

It's also struck me that "maximum" != "average" would be a particularly unhappy argument to someone in Aaron's position, as he'd just had the situation go extremely, horribly, incredibly badly. Putting aside finger-wagging moralizing about accepting consequences, I don't think he expected to wind up facing multiple Federal criminal charges. The key question I suspect he'd be thinking about isn't "What do Federal Sentencing Guidelines recommend?" (which is complicated in itself). It's "What if the end result is as bad as everything else has been up to now?".

Lessig also has an interesting comment on motive, similar to what he's said before:

Neither you nor the prosecutor knows Aaron's motives here. I do. But without revealing what I know, let's be clear about what could reasonably be believed: one could reasonably believe only one of two possible motives: either he was (1) building a database to analyze bias in scholarship (as he had done while at Stanford using the Westlaw database, resulting in a published article), or he was (2) intending to make available (consistent with the Manifesto, and likely in the Third World) in disobedient protest this scholarly material.

I've always thought that Aaron intended to make available only public-domain material, and was later going to sort out what could be legally redistributed from what was still restricted by copyright (I should hasten to disclaim I have *zero* actual knowledge of his motives, and we never even discussed this particular topic). That would be consistent with what he'd done before, e.g. making available court filings. But as Lessig has never mentioned this mild variant, I guess I have to accept I was wrong on that (which saddens me greatly).

New Yorker "The Tragedy of Aaron Swartz" - case strategy info comment

I haven't written a long "personal" Aaron Swartz post. It's not my skill. I knew him and liked him, and was greatly saddened by his death. I recently had occasion to look back at some activism discussions I'd had with him. It was, well, I shouldn't use the word "depressing" - let's say "dishearteningly melancholic". But others were much closer to him than I was. After all the articles that have been written, I'm inclined to think that everything worth saying along such lines is now being said by better writers.

I'm just going to comment here about one nugget about the legal case to be found in the contemplative article "The Tragedy of Aaron Swartz":

Second, while he had previously tried to keep the case quiet, in order to give M.I.T. a chance to reverse its stance without embarrassment, now he and others recognized that this strategy had failed. Their new strategy entailed hiring a P.R. firm to stir up public outrage before the trial.

I'd long wondered why there hadn't been much publicity about the case. For a long time, it seemed like I was one of very few people blogging about the case. The absence of an intense PR campaign was extremely odd considering how many high-attention allies he had (note I didn't use the word "friends" there - in politics, it's "allies" that's needed, and don't confuse the two), plus all the "markers" from his work with literal political campaigns. There wasn't even a website giving his side of the story, a fact which was extremely puzzling to me. Looks like indeed, that relative quietness was a deliberate decision by people in charge.

It's a continuing mystery to me, in terms of my failure at policy interactions, how one reads what I call "The Memo" about what one should do. That is, nobody posts a literal memo like:

To: All net.activists
Subject: Swartz strategy
Everyone - we're trying to do a plea deal. No "FREE AARON!" flaming, please. If that deal falls through, we'll get in touch, and then it'll be time to start messaging "He's being persecuted for checking out too many library books". But not right now, thanks folks.

But sometimes that might as well be what happens, from the outside. For example, in the "Net Neutrality" fight (a dispute between Google, etc. and telecommunications companies over costs), a Memo essentially got sent around to the Google, etc side that a big talking point was ISPS-ARE-*CENSORS*. And it was mind-boggling to behold.

Anyway, I should make clear this isn't a criticism the low publicity strategic decision. He had first-class, top-flight lawyers throughout the case. I'm not going to second guess them at their job in this situation.

My point is that, regardless of the merits of the cause, "public outrage" often does have a "P.R. firm" behind it. Even for causes dear to the grassroots, like Aaron Swartz. This is a rare example where that was demonstrated in the negative (no PR firm, no outrage).

Aaron Swartz suicide and the "JSTOR" case

The facts: "Aaron Swartz commits suicide": "Computer activist Aaron H. Swartz committed suicide in New York City yesterday, Jan. 11 ..."

Others can write eulogies. I'm not good at that. Forgive me for not doing a personal remembrance in this post - it's an area where my writing skills fail me. I must take refuge in a certain distance.

I've been trying to articulate why I think his death had deeper implications than intrinsic personal tragedy. Maybe it's too soon to take that up. Too political, too distracting now. I know the moment I start writing about my view that his prosecution for various felony charges in the "JSTOR" case was a key cause, I'll get a backlash. People will say, you can't know that for sure (right - that I can't prove it doesn't stop me from thinking it's true). His other problems have been mentioned in many discussions (however, combinations of factors still mean each one was a contributor). They'll be an argument that the law can't take into account such stress on a defendant (even if so, the effect is still real).

But I've read through almost all the case documents, and it felt to me like the prosecution was doing their best to make an example of him. And that was going to harm his life even if he was eventually acquitted (after a long grueling ordeal which would cost a fortune and take a huge emotional toll). It's the sort of situation where even if you win, you still lose in many ways.

Maybe I'll say more later. Or maybe there isn't any more for me to say.

RIP

Old Year's Disillusions 2012

New Year's Resolutions are a tradition of listing things in the next year you would like to do - but (realistically) you know that you won't (I think there should also be a tradition of "Dissolutions", things you actually did do in the past year, and wish you hadn't - but that's another topic, for a different type of blogger). I'm going to turn it around, and list "Disillusions", a few items I would have liked to have done, but couldn't.

Every so often I think about writing out some of my thoughts on the activism strategy in Lawrence Lessig's "Republic, Lost" anti-corruption efforts. I agree with him overwhelming in terms of the general topic of the corrupting influence of money in politics. However, when it comes to proposed solutions, there's a set of patterns which are very common and well-worn. For example, the Work Within The System types constantly argue with The Outsiders (or at least those who style themselves that way - some outsiders are too far away socially to even argue with "liberal" reformers). And thus, recursively, I fear I'd be falling into one of the bad patterns myself, the Pundit Pontificator. That's useless, and for me, dangerous. It's useless because anything of the form "I agree with your goals but not your tactics" is one of the oldest cliches of activism. And it's dangerous for me as I'm not at the power-level to argue at any sort of reasonably risk/reward ratio. Moreover, it doesn't seem like there's any great need for me to say anything. Lessig might even end up eventually shifting via the Ignored Insider pattern (where reformers become more radical after years of contention with other insiders). Being too early in politics is another endemic risk, with no rewards.

During the fight over the proposed "SOPA" law for new copyright enforcement powers, I blogged a few times about being torn over the ends-vs-means dilemma. I opposed SOPA, but the tactics used against it were extremely manipulative (yes, politics, that's the point). Then there was another UN-to-take-over-the-Internet manufactured panic. That last moved Marc Rotenberg, president of Electronic Privacy Information Center (a dedicated organization that doesn't get corporate sugar-daddying) to write

But where once advocacy efforts were aligned with international human rights instruments and decoupled from the lobbying efforts of particular companies, increasingly the debate over Internet freedom is one that pits governments against large corporations, with the advocates in tow.

I'm glad he said it. Somebody needed to. I'm disheartened by the extent of the transformation of Internet civil liberties advocacy into corporate liberties advocacy via application of that's-where-the-money-is. However, I'm not going to go through that battle again myself. Once was enough.

Wikipedia still fascinates me, even though I've basically given up on getting policy people to think about the points I've made about its dysfunctional dynamics and being a creature of Google's page-ranking algorithm. I found the Philip Roth Wikipedia controversy (about his inspiration for a novel) extremely revealing about one aspect I keep noting, the status hierarchy differences between experts and Wikipedia editors (i.e. the different worldview between Roth, etc. vs extensive Wikipedia contributors about who is high-status and who is low-status, which group should defer to the other). But there was a large amount of nastiness flying about, I believe exactly because of the hierarchy difference being in such stark relief over such a prominent literary figure. I decided not to stick my head into that storm. Roth hardly needs me to defend him, while enduring the attacks of Wikipedian flamers just didn't seem worth it for something which wasn't going to have any effect.

Anyway, Happy New Year, especially to anyone who is still reading down here way under the tail.

"Net Neutrality" - deals, pawns, catspaws, and the jumping of sharks

For the recent news of Google and Verizon cutting a deal, err, I meant, announcing "A joint policy proposal for an open Internet" I'll make an exception to my practice of staying OUT of "Net Neutrality". I'm going to poke my head up today, since I suspect that those who might be inclined to slam me from "on high" in order to score a few cheap attention-points in the punditry game, are going to be too shell-shocked right now for that to matter to them.

As I put it above, a while back:

This whole issue is driven by a fight between content-providers versus telecommunications companies over who will pay for the cost of upgrades to network infrastructure. The telecommunications companies want to pit the content-providers against each other, essentially in an auction for best service, and hence extract more money. The content-providers don't want to play that game, and want to make sure the telecommunications companies can't even try it.

This is worth BILLIONS of dollars, and both parties know it. You can see the lobbying money in all the astroturf and camp-followers. But it's got nothing to do with freedom, democracy, or making little girls cry because their website is slow.

"Net Neutrality" peaked today. I don't mean that it's "over". But now is a watershed moment when some driving interests behind it - that battle between enormous corporations - have reached a compromise among themselves. Everyone, welcome to the moment when the pawns and the catspaws (that's you) have served their purpose, and are shortly to revert back to being ignored ranters on blogs, mailing-lists, and in obscure academic publications. The civil-libertarians are about to be, if not exactly cut loose, regarded as no longer useful.

And personally, I am extremely happy not to have donated my time and energy to Google. Google is not your friend. Google is not your buddy. Google is a mammoth company with multibillion-dollar interests. A corporation will not hesitate to use and discard free-speech arguments as part of its lobbying, abandoning them whenever convenient. I hope all the people who volunteered to be unpaid lobbyists have derived a deep emotional satisfaction from that work. Because if you didn't get anything else, that's all you'll end up with. If I had told some of the activists who tried to "recruit" me, what would eventually happen as we see here, I'd probably just have been attacked.

I've become very cynical. Today's Google-Verizon deal is an example of why.

Walt Crawford "Discursive Glossary"

Walt Crawford has a "Discursive Glossary" as the latest Cites & Insights edition, starting "A was for AAC", which gives a good idea of why it's of interest (AAC == "Advanced Audio Coding, the form of lossy compression used by Apple iTunes"). He disclaims the previous edition "was a set of miniature essays organized as a glossary. Neither is this set intended as more than a set of commentaries."

But mainly this post is because it has an entry about me, and still in Newish Year mode, it's actually a capsule summary. He writes:

Finkelstein, Seth

Then: A consulting programmer and censorware activist and researcher; you’ll find lots more at sethf.com, including Finkelstein’s own weblog. Cites & Insights uses "censorware" rather than "filters" after reading and considering Finkelstein’s arguments...

Now: The blog, Infothought, has been heavy on matters related to Wikipedia and Wikia, but he continues to focus on censorware, Google and copyright as well. Ignore his tick of considering himself unread (although he does frequently publish columns in the Guardian, something other "unread bloggers" can’t say). He’s worth reading.

Thanks for the kind words, especially the "worth reading".

Note I've found that Guardian columns drive very little blog traffic. It's just a handful of hits. Publishing such columns does not make my my blog widely read. So, at the risk of boring repetition, the question is: Why write any post?

Anyway, these days, I'm thinking the Google field has become highly crowded, with several big Google-and-society books on the one hand, while search startups are crashing and burning on the other (poor Ask.com - they really do try harder). It connects to Wikia as I'm really disappointed with Wikia Search, on top of the exploitative digital-sharecropping economy. I got drawn into writing about Wikipedia, and then thought I could do some good debunking the hype. But objectively, it all doesn't seem to have done much good though :-(.

New Year's Resolutions 2009

Revisiting and updating what has gone before:

0) Looking back at e.g., 2005, 2006, 2007, 2008, be aware that I tend to repeat myself in frustration, and try to address the reasons for that.

[Still failing here :-(]

1) Stop arguing with marketers about "conversation". It wastes my time, and it annoys the flack. It's not going to do any good.

[God, what a huge amount of time I've wasted on this, squeaking against bullhorns]

2) Stop being delusional about ever having more influence. That ship has sailed.

[Sigh ...]

3) Keep OUT of the "Net Neutrality" politics. It'll only hurt me.

4) "Life Trumps Blogging"

[Need more work here, though making progress :-(]

New Year's Resolutions 2008

I'll just revisit and update the last go-around:

0) Looking back at e.g., 2005 or 2006, be aware that I tend to repeat myself in frustration, and try to address the reasons for that.

[Or 2007. Definitely a failure here. I've got to put more effort into not making that mistake.]

1) Stop arguing with marketers about "conversation". It wastes my time, and it annoys the flack. It's not going to do any good.

[Despite the occasional lapse, I think I've made progress here]

2) Stop being delusional about ever having more influence. That ship has sailed.

[Sigh ...]

3) Fish or cut bait on whether to try to push out my moldering Google and Wikipedia reports, or just write them off like the censorware research, since it's likely more effort to beg attention than it's worth for me.

[Basically decided it's a write-off]

4) "Life Trumps Blogging"

[Need more work here :-(]

My stance on "Net Neutrality" - I'm staying OUT

With yet another "Net Neutrality" brouhaha in full swing, I think it's finally time I did a public post declaring my own, if not exactly neutrality, profound disinterest in being "used".

My executive summary: If Google/Yahoo/etc. OR the telcos, want me to act as a lobbyist for them, they can pay me, at lobbyist rates. No unpaid lobbyist work. Rich companies on either side do not need my help. And while it may be my undoing, I'm not going to join up for the dubious PR.

This whole issue is driven by a fight between content-providers versus telecommunications companies over who will pay for the cost of upgrades to network infrastructure. The telecommunications companies want to pit the content-providers against each other, essentially in an auction for best service, and hence extract more money. The content-providers don't want to play that game, and want to make sure the telecommunications companies can't even try it.

This is worth BILLIONS of dollars, and both parties know it. You can see the lobbying money in all the astroturf and camp-followers. But it's got nothing to do with freedom, democracy, or making little girls cry because their website is slow.

It's not for me.

Pre-emptive: Please don't try to recruit me with the pitch that without Net Neutrality, the telecos could impose censorware. They already can. In fact, there's already a specific non-net-neutrality censorware provision in US law for the telecos, that dates from the 1996 Communications Decency Act: "Protection for private blocking and screening of offensive material":

No provider or user of an interactive computer service shall be held liable on of account

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or ...

I've heard this pitch from a few people in the past, one I'm confident was well-intentioned, another I have my doubts about. Which sort of tells you the level of the debate.

Comcast and BitTorrent

There is something really strange going on here, but it's extremely difficult to tell what it is.

A story's going around about the Comcast high-speed internet service allegedly interfering with user's ability to use BitTorrent. I recently had occasion to download a large Linux distribution (sigh, note this is completely legal), and so saw the problem firsthand. There's definitely a network issue somewhere.

But ... it's very subtle. And given the intense politicization of anything have to do with so-called "Net Neutrality", I have to confess I'm deeply put-off from getting involved. It looks like we're in for yet other round of extensive political campaigning drowning out any real analysis of the technical issue.

[Update: See Richard Bennett's posts]

Debunking AT&T Censoring Criticism Via Terms-Of-Service

[I wrote this for a mailing list, in a futile shouting against the wind. Sigh. Why bother? It's a bad habit. ]

Please folks, whenever an it's-an-outrage campaign starts going around, do the following: Type a few words into a search engine, try to ignore the echoes, and see if there's anything to it. If not, say "There isn't anything to this". I understand the social process where one gets reputation-points for extremism, and can even lose for critical thinking. But we should be better than the geek version of talk-radio dittoheads.

Like this:

http://www.google.com/search?q=%22damage+the+name+or+reputation%22+-%22AT%26T%22

This shows that a TOS clause about "damage the name or reputation" is a common boilerplate, and has nothing to with AT&T trying to supposedly CENSOR CRITICISM. It took me around a minute to find that.

I used to think this sort wolf-crying needed to be affirmatively opposed because it reflected badly on net activism. Now I've come to believe I'm just not cut out for politics.

[Update:

Verizon : Policies Prevent No One from Speaking Out about VZ

AT&T statement

Oh, and my message above eventually got rejected by the mailing-list's moderator]

My _Guardian_ column on the difficulties of making a difference

http://technology.guardian.co.uk/weekly/story/0,,2091220,00.html

"If you want to change the world, a blog may not be the place to start"

Seth Finkelstein: Getting ideas into the system can be more difficult than writing web pages and hoping somebody reads them.

Yeah, yeah, I know, obvious objection - It's a column, so it's self-refuting, right, huh, huh, huh? No. To a good approximation, there's an exponential curve of influence (per-topic), and you can draw an arrow labeled "You Are Here" pointing to your spot on it. The more you want to do, the higher up on the curve you have to be, and it's a very hard climb. Of course, if you don't want to do anything, you won't care where you are along it. But that's sort of a trivial answer.

Won't be at ONI censorware conference - couldn't get travel documents

To anyone who saw my name on the attendees list on the ONI "Future of Free Expression on the Internet" conference in England, sadly, I couldn't get my travel documents in time, so I had to cancel out, regrets.

[If you want to read some ramblings of an "inside view of net-politics" regarding the problems of someone close enough to the elite to see inside, but far enough removed to still be an outsider, I've put it after the jump, so as not to bore people who don't care about such indulgences.]

I attend, as I sometimes describe it, between 0.3 to 0.5 conferences a year, and I've never traveled outside the country. It's just not a part of my life. When I happened to see that the OpenNet Initiative was having a "Global Internet Filtering Conference 2007", I signed-up, for many reasons (one being that maybe I should be there to defend myself ...). Then, later, when I went to book a flight, I realized, uh-oh, I don't have a passport. In an ideal world, I would have thought of this earlier. But again, having never been out of the US, the vital mental association of travel-to-conference-in-England == need complicated government document, was not made soon enough.

If I were part of the club, I'd have the necessary documents already, as a basic cost-of-doing-business. But I'm not. In fact, I'm looking at spending a day on a plane, then another day back, not to mention between airfare and hotel, this is likely to cost me around a thousand dollars, and that's by no means trivial (I did not get rich in the Big Bubble, and there's times I'm quite aware of it, though of course even being able to consider a trip to England puts me far above average).

So it ended up being another little lesson that I'm not really cut out to operate at the level I'd need to be, in order to make a difference. Sometimes it's little "cultural" things that trip you up.

Philipp Lenssen: A Chat with Aaron Swartz (about Google, China, etc)

Bandwagon: A Chat with Aaron Swartz, conducted by Philipp Lenssen, covers a lot of interesting ground on the topic of Google, censorship, tech culture, and so on (h/t Shelley).

I'll note one particular part of the exchange:

Philipp: It would be interesting to see where we'd be if some of these engineers, some of them the smartest in the world, would be working on anti-censorship technology today.

Aaron: Indeed. Google's hackers are a lot smarter than the Cisco people building the Great Firewall of China. Google's skills are in building clever technology, not persuading foreign governments to be nicer to their citizens. It's absurd to say that the best thing for the people of the China is to do the latter instead of the former.

This is the unending tech-vs-law argument. It's a big mistake to think that the only smart geeks are on the anti-censorship side. If nothing else, the pro-censorship side pays a lot better :-( ! And as we've seen, Google's brainpower can be co-opted, with their geeks put in the service of China's government censorship, by Google simply ordering their employees to help the censors.

Worse, one of the points I sometimes try to convey, is that the activist's biggest source of danger is generally not the government agent, but another activist or similar who has something to gain by turning him (or her) in.

The collaborationist dilemma is an old one, and I'm very much against it. But I've yet to find a way to make much progress with it.

New Year's Resolutions 2007

Some public personal goals as 2007 begins ...

0) Looking back at e.g., 2005 or 2006, be aware that I tend to repeat myself in frustration, and try to address the reasons for that.

1) Stop arguing with marketers about "conversation". It wastes my time, and it annoys the flack. It's not going to do any good.

2) Stop being delusional about ever having more influence. That ship has sailed.

3) Fish or cut bait on whether to try to push out my moldering Google and Wikipedia reports, or just write them off like the censorware research, since it's likely more effort to beg attention than it's worth for me.

4) "Life Trumps Blogging"

Lessig's CODE v2 released

Lawrence Lessig's book CODE, version 2, has been released. It's a book with much meaning to me.

I'm mentioned substantively twice in the book.

About the Al Gore / Internet story:

The only redeeming part of this story is that it's simple to document the falsity -- because of the Internet. Seth Finkelstein, a programmer and anti-censorware activist, has created a page on the Internet collecting the original interview and the subsequent reports about it. His is the model of the very best the Internet could be. That virtue, however, didn't carry too far beyond the Internet.

And concerning the Nitke court case and geographic location on the Net:

But it is still possible to evade identification. Civil liberty activist Seth Finkelstein has testified to the relative ease with which one can evade this tracking. Yet as I will describe more below, even easily evaded tracking can be effective tracking. And when tied to the architectures for identity described above, this sort will become quite effective.

Thanks!

Psiphon and The Power Of Media Attention

CBC News: Interest in web anti-censorship tool rockets after launch

A new online tool designed to circumvent government censorship of the internet already appears to be a runaway success, a University of Toronto researcher who helped develop the software says.

Some 30,000 copies of psiphon (pronounced sigh-fawn) had been downloaded by 2 p.m. Monday after it was made available at 1 p.m. last Friday, Michael Hull, the program's lead engineer told CBC News Online.

That rate of interest by far surpasses his highest estimate for the total number of downloads anticipated, he said.

"I thought we were going to have maybe 10,000 downloads," he said, noting that traffic to the site was still on the rise. "I was amazed."

He said it, I didn't ("amazed").

I'm all for this project, but the activism lesson I draw from its prominent coverage is NOT necessarily a happy one. There's been activists working on this sort of stuff for years and years. The critical variable here is not technology, since those reporters wouldn't be able to tell a Tor from a FreeNet. What matters is *ATTENTION*. The backing from the various organizational sponsors is the reason for the widespread publicity.

Don't get me wrong. The attention being devoted to Psiphon is good. But I worry people are going to draw some very wrong lessons from the media frenzy. I've said this before, but it gets repeatedly demonstrated. Without some sort of support from an attention-system, it doesn't matter what you do in terms of fighting censorship, you'll talk to the crickets!

Minor DMCA censorware exemption reflections

Misc notes. I've said other material before, probably too many times.

Another ex-activism milestone passed (not a turning point, as no direction changed, but a milestone, passage of a notable event).

I made minor updates to my main censorware page, e.g. struck-out the part about
"Support needed! Legal and financial support is needed to continue this work! Please contact Seth Finkelstein if you can help."
It's been obsolete for a long time now anyway. Nobody ever responded in any case.

Blogging doesn't work (I'm being repetitive, but it bears repeating).

All that is necessary for the triumph of evil is that good men do nothing.

I probably should say more about the subject, but navigating between what I'd like to write, and what I can safely write, is too problematic.

"Hoodwinking the censors", and funding anti-censorship

"Hoodwinking the censors" is an interesting article about anti-censorship software being developed at the OpenNet Initiative [Update: Citizen Lab ] (hat tip: Philipp Lenssen). I'm going to skip the technical issues of the subject, and take the article as an opportunity to write a fragment of memoirs applicable to the "inside view of net-politics" part of the description line above (note I know at least two people appearing in the article will be reading this post, both of whom have kindly encouraged me to continue this blog, which is all the disclaimer necessary!). Namely, money:

More than a few people view the work of the Citizen Lab, and Psiphon, as important. The ONI as a whole receives funding from several major U.S. foundations that promote peace and democracy, including a recent $3 million from the MacArthur Foundation in Chicago. In addition, the Citizen Lab has received money from the New York-based Open Society Institute, which supports human rights projects and whose patron is billionaire George Soros.

At some point in late 2003, early 2004, somewhere in the mix of my winning a DMCA victory, and being turned down in the n'th attempt at getting a policy position, it became clear that if I wanted to seriously continue with Internet freedom activism, I was going to have to set up my own organization. Appoint myself Executive Director of something like "The Center For Censorware Studies". Go after foundation funding for money, maybe do the conference circuit.

I seriously considered it. But it just didn't seem like a workable idea. At the time, I'd gone through draining unemployment from the tech-wreck, and the programming market was finally picking up. Inversely, getting funding seemed like it was going to require a lot of work in competition with organizations which were far better "connected" than I was (Harvard!), so I'd be at an extreme disadvantage.

Sometimes people would suggest working for an existing group in a support role, but that was extremely problematic. Nobody wanted the specialized technical decryption work, it's not cost-effective for its legal risk. For generic programming, they could hire someone much less senior than me. And it wasn't a resume-enhancing job for me either. So, purely as a job, it was hardly a good deal for either side. Compare:

The third member of the Psiphon team, 42-year-old Michael Hull, was hired in January to make the program user-friendly. ... Trained in physics, Hull sold his document encryption company in 2003. "Over the years I've been building commercial, private software to solve problems for corporations," Hull says. "So this is nice because it kind of flips it all around. It's a way to give back while I have a chance."

Good for him. But it's why I sometimes say I regret doing so much unpaid anti-censorship effort, and not taking my chance at the tech IPO goldrush when money was falling from the skies (or at least it seemed that way). It seems that in order to do such activism, one has to be (the following are not exclusive):
1) Professional policy person (lawyer, lobbyist, etc)
2) Institutionally supported (i.e. an academic)
3) Independently wealthy *or* unconcerned with employment
And, sadly, I don't fit any of the categories, or been able to find a functional way to get myself into any of the categories. I've never been able to solve this "business model" problem.

[Update: Prof. Ronald Deibert says there's a Psiphon FAQ]

Aftermath

With the end of the Nitke case, it's clear everyone involved is disappointed. The problem with taking on tough tasks is that, by definition, it's a tough task. Fighting the good fight is no guarantee of victory. I've come to know some of the people involved, and how much they've put into this case.

I suppose, on a personal level, I came out of it OK. I didn't get attacked (deposed and cross-examined in testimony, but I could handle that, it was conducted professionally). I made some friends, and will be warmly recommended (though I don't think I'm connected enough to get any $110/hour expert-witness gigs, those are political plums, at least I can ruefully note another "dues payment" to The Cause). I did my best, helped with what I could, and at times that's just not enough to win.

This case was my last big "open" civil-liberties task. I too often think I'm going to get my big break, and be vaulted to netgeek rockstardom (or at least some level above street performer). But that's a delusion. It won't happen unless either I strike it rich (so I can buy the necessary attention), or get a prestigious policy position (so the institution directs attention to me) - both of which, contrary to some myth, are relatively difficult and improbable. Otherwise, I'm going to be slogging in obscurity forever.

Now that this case is over, I think yet another reason for me to keep a blog is gone. I thought there might be something to "citizen journalism" coverage. But again, I think any objective assessment of the results would have to be negative. Nobody is going to read me just for the very occasional update. And as I keep asking, what's so great about being an unpaid freelancer?

Posting will be light/attic-cleaning mode due to real work and other writing. Blog is not quite dead (yet?), but "Life Trumps Blogging".

On the Alleged "Outing" of Secure Computing's Chief Blacklister

Politics is not harmless.

I've been watching the controversy over certain alleged fetishes of Secure Computing's chief blacklister. From one perspective, the way it's been handled would make a good Monty Python comedy routine, something I'll parody as:

"The Minister Of Silly Posts has issued the following statement: "I shall have nothing to do with the rumors that my opponent likes to wear lady's knickers on his head, and eat peanut butter from his partner's private areas. His alleged extremely weird sexual fetishes should not be an issue in this campaign. Even if the reports of his multiple drunken orgies were true, no laws were broken, and all attendees were consenting adults. As there has been no credible evidence he has seduced underage schoolgirls, exchanged drugs for sex, or sold his office to High Street tarts, we should strive to keep this campaign on a higher level. That is all. Thank you."

[I'm sure going to get some strange keyword searches with that paragraph!]

The debate on the morality of "outing" is extensive in general, and I'm not going to go over it here. I am only going to make a meta-observation:

I am now SO GLAD that I did not volunteer to be the human sacrifice, err, main proponent, of the Digital Millennium Copyright Act (DMCA) anti-circumvention rulemaking exemption for censorware, this time around. Because there's going to be a backlash, and I'm happy *not* to be a tempting target. Writers for the number-1 blog can defend themselves, in a way that a Z-lister can't (so much for the blog mythology).

I'm told one never knows who is reading, so if anyone from the Library Of Congress committee is lurking out there - THIS is the sort of politics that I've tried to convey is not a reasonable background for determinations of fair use to allow research. Is my point clear? Could it be any more, err, explicit? Of course you try your best, I know that. But the fact remains, the DMCA process is broken.

Updated summaries of Censored Censorware Research

I've added one-line summaries to the material linked in my page of Censored Censorware Reports. These are general descriptions of censorware research which I could not complete and publish, due to fear of legal liability, and being marginalized. I've wanted to improve that page somewhat, and the recent interest in censorware due to attention from a gatekeeper seemed a good reason to go back to it. If you've already seen it, it's not worth re-reading (for the summaries, rather than in general). But there might be new or casual readers who would have an interest in what won't be done, because of the lack of support for my research.

I still regret having to write-off all that work, since a huge amount of effort went into it (some bits and pieces were usable here and there, but much remained a total loss). But nowadays the realistic choice is just between bad (write it off) and worse (ignored AND possible lawsuit).

As the saying goes: "Remember, no matter how hard you work, no matter how right you are - sometimes the dragon wins."

Resisting The Temptation To Ever Do Censorware Research Again

BBoing's latest on censorware banning translation service:

"It's hard to believe that Secure Computing would behave so irresponsibly as to actually block access to a translation service just to keep its censorware from collapsing."

Sigh ... November 16 2000 - SmartFilter's Greatest Evils - "Abstract: This paper examines what the censorware product SmartFilter considered to be the worst websites, as measured by the number of categories under which the site was blacklisted. It was discovered that two broad classes of websites were maximally blacklisted. These were privacy/anonymity service sites, and language-translation services. In retrospect, this is in fact an obvious requirement of censorware, as any private or anonymous browsing ability is antithetical to the goal of control in censorware."

August 2001 - BESS's Secret LOOPHOLE (censorware vs. privacy & anonymity) - "Abstract: This report examines a [then] secret category in N2H2's censorware ... This category turns out to be for sites which must be uniformly prohibited, because they constitute a LOOPHOLE in the necessary control of censorware. The category contains sites which provide services of anonymity, privacy, language translation, humorous text transformations, even web page feature testing, and more."

This is what marginalization looks like.

I can decrypt and write and blog ... IT'S NOT HEARD!!!

I'm even on the first page of results for a Google search on "SmartFilter". Which debunks the pollyanna argument that you can toss the information out there, into the ocean of webpages, like a message in a bottle, and it'll be found by the magic Google.

I can't say I haven't experienced temptation over the last week. But I think I've been shown once more that, at best, I'm going to have the research ignored and later others will get the credit, and at worst, I'm going to hurt my life (note, again!) by making myself a target. Caveat, that last sentence encompasses a few things I shouldn't discuss in public. But, even so, the objective results seem re-affirmed :-(.

Global Internet Freedom Task Force, China Net Censorship, etc.

Censorware's in the news every day now it seems, from NYT on China Censorship hearings to the announcement of a "Global Internet Freedom Task Force":

Washington --An informed citizenry is one of the greatest forces for global peace and stability, said Josette Shiner, under secretary of state for economic, business and agricultural affairs, at a State Department briefing February 14 announcing the formation of the Global Internet Freedom Task Force.

"It's a top priority for the State Department and the U.S. government to do all we can to ensure maximum access to information over the Internet and to assure minimum success by censors," Shiner said.

The task force will make recommendations to Secretary of State Condoleezza Rice on policy and diplomatic initiatives, Shiner said.

As a segue from recent gatekeeper discussion, note how blogging is utterly and completely useless for anti-censorship activism. If the goal is to reach people, squeaking from the tail doesn't work. In fact, one often overlooked point is that for activism, blogging can be counter-productive, since energy might be wasted preaching to the choir, inside an echo chamber.

Another evangelism argument is that you never know who is reading, tempting z-listers with the delusion that someone like the President or the Pope might be secret fans. Well, I'm reasonably sure the government of China is not reading my blog (or, if someone there is in fact doing so it's for "opposition research", which is something that is not often mentioned in blog evangelism).

That leaves reaching specialists. But there are plenty of ways to communicate with such people, that don't constitute the grind and downsides of a blog. Sure, somebody who has a lot of power already can make it work. But the (attention-)rich are different from you and me (they have more links).

So, back to Net censorship, What Is To Be Done?. I keep reminding myself that there's much consciousness-raising going on, which is good. And that my perspective, as a bitter pioneer with many arrows in his back, is not typical.

I agree with much of EFF's proposals, notably:

Free governments benefit from sponsoring anti-censorship and anonymizing software, such as those supported by the United States' International Broadcasting Bureau. But companies, too, stand to gain from investing in development that might lead to an opening of previously closed societies. If U.S. companies find that oppressive governments block or impede their Internet services, they should not simply give in to the threat. By working together on ways to surmount Internet control they will not only be providing wanted new products to 1.3 billion new customers, they will help open trade and communications between all countries, and all citizens.

Shorter version: Money (i.e. for "sponsoring anti-censorship and anonymizing software"). If none if it appears, there's nothing beyond posturing.

I keep wondering when there'll be an announcement from Harvard that they've got a grant of a million or two to produce a (say this in a singsong voice) study and recommendation for a policy paper on Internet governance and the challenges of censorship in the cyberspace age. If that happens, you heard it here first :-)

By the way, please don't suggest I chase after a piece of the so-far-nonexistent funding pie. Given all the better-connected organizations, and existing projects, it's not for me. Though if someone wants to put me on their "advisory board" in return for stock options, I'm available! :-)

Anti-Censorship Talk Is Cheap, Anti-Censorship Money Is Scarce

You say you got a real solution
Well you know
We'd all love to see the plan
You ask me for a contribution
Well you know
We're doing what we can

-- Beatles, "Revolution"

In the wake of ChinaCenGoo, I was looking at the website of Tor: An anonymous Internet communication system.

Activism is hard, as in, unprofitable. It seems they don't have money these days, so they're asking for donations:

As of October 2005, EFF no longer has any money for supporting the Tor project. Your donation will help Roger and Nick focus on Tor development and usability rather than looking for new sponsors and getting distracted by day jobs. Help us keep Tor under active development!

It's no psychic trick at all to predict that there will be a new outpouring of blathering about fighting China's censorship with The Internet! and Blogs!!! [links omitted out of self-preservation]. When you read that stuff, please take note of how much serves merely to attract attention for the bibblers, as opposed to helping anyone actually do anything.

Poll - Do A New (Google-ish) Site?

Given the recent Googlevents, I'm again thinking about whether it would be a good idea for me to set-up a more "professional" site, focused currently on publishing Google investigations (though I wouldn't want to lock it into Google/search as a topic exclusively, that's definitely where the action is these days).

Pro - People ask me for Google stuff. Google doesn't sue (compare censorware legal risk). Some A-list Google bloggers like me, and none of them hate me. It occasionally even pays!!!

Con - I'm reasonably employed at the moment, so I don't need to drum-up consulting business. It's still work. A lot of people are in the field already, it's downright crowded. There remains a potential downside of getting flamed for contradicting the ranty net.catechism (repeat after me : It's An Outrage. They're Coming For You. The Feds Are Gonna Get You.)

Question: Did I get any new readers from the past week's Google-punditry? Specifically for Google material?

Note: DMCA Rulemaking Exemptions Must Be Renewed Every Three Years

I was just talking to Jay Sulzberger (a Linux and Fair Use activist) about the upcoming DMCA Exemptions proceeding, where there's a rulemaking for special exemptions for the Digital Millennium Copyright Act's prohibition against (only) circumvention. He was interested in my thoughts regarding an idea of his, a broader, user-focused, security-based exemption, as illustrated by the issue of the infamous Sony "rootkit". I gave him some advice on drafting a proposal. The conversation then turned to what I planned to do - or not to do! - with the DMCA censorware exemption. I was surprised to learn that he did not realize that any DMCA rulemaking exemptions only last three years, and then have have to be re-argued all over again, from scratch. Per the Notice of inquiry:

There is a presumption that the Sec. 1201 prohibition will apply to any and all classes of works, including previously exempted classes, unless a new showing is made that an exemption is warranted. Final Reg. 2000, at 64558. Exemptions are reviewed de novo and prior exemptions will expire unless sufficient new evidence is presented in each rulemaking that the prohibition has or is likely to have an adverse effect on noninfringing uses. The facts and argument that supported an exemption during any given 3-year period may be insufficient within the context of the marketplace in a different 3-year period. Similarly, proposals that were not found to warrant an exemption in any particular rulemaking could find factual support in the context of another rulemaking.

This part of our conversation was disheartening to me, on many levels (n.b. he gave me his permission to write about it). Jay isn't a lawyer, but he's been an activist for many years, and in fact testified himself in the previous DMCA exemption proceedings. It was disheartening since my deep unhappiness is based on not wanting to go through that grinder all over again, with the prospect of an outcome even worse for me personally this time than last time. Abstractly, this strikes me as a thoroughly reasonable point of view (i.e., give all the stress and flaming I went through once, subjecting myself to it again, probably worse, is an unbearable burden). Now, when I explained to Jay about the expiration, and that I'd have to go through everything I went through before, plus whatever further attacks were heaped on me, he had a much better understanding of why I felt the way I did. But seeing how little this background was commonly understood, and so how likely I was to get even more negative reputation-points because people just didn't grasp the reasons - that was a very gloomy experience.

Thanksgiving blog note

In terms of what I write about on my blog, there's things to be thankful for.

I haven't been sued, pauperized, or made unemployable.

I do have the distinction of being an EFF Pioneer Award winner, and achieving a DMCA victory

Occasionally some big-time cyberlawyers say nice things about the censorware work I did.

But it cost much ... . Happy Thanksgiving.

China, Microsoft, Censorship, etc. etc.

I feel I have an obligation to post something about the Microsoft/China/Blog censorship issues (what a combination!). Yet I don't really have much original to say. The comparatively few people reading me are likely civil-libertarians already, so why clog the web with yet another post on it (or "opposition research" from censorware-makers, same issue from a different perspective)?

There's a few Lessig-style code-is-law implications, about how government and large businesses can work together to enforce control. But I'm not sure this incident works well as a teachable moment about the concept. When some people see a large corporation doing the bidding of a repressive government, it tends to reinforce the simplistic "government-bad/business-good" framework, and they'll just conclude all the bad aspects of the situation should be attributed to the bad government.

The government of China sure doesn't care what I think.

Any issue of censorship has a whole host of generic arguments, ranging from extreme moral relativism ("But it's a traditional culture value to burn heretics"), to cheap contrarianness ("I say heretics should be burned, and the reaction shows I'm being persecuted for my courageous stance against the totalitarian orthodoxy of permissiveness!"). Those are being iterated over ad nauseum.

There's also the free-speech politics as it affects me. I have some thoughts regarding various projects in the air. But I tend to keep them to myself. Given various players involved, negative comments from me would just come across as sniping, and positive comments would set me up to look very bad if I was asked to follow through (i.e., if I said "X is a bad idea, it won't work", well, it's not my project, so that sounds like carping. If I do "[Think: X is a bad idea, Y is a bad idea, there might be something in Z - say:] Z sounds so neat!", then if someone says "We're doing the X,Y,Z project, why not get involved?", I'll then look like I'm making excuses for not walking the walk). I managed to navigate my way around one of these dilemmas a while back, taking no damage, but it was choppy seas, and things have just gotten worse for me since then. I sometimes joke, I don't to want to deal with stressful software-project politics even for lots of money, much less no (or very little) money. I suspect somebody will end up getting a grant for the topic. But I'm nowhere near connected enough to be in the running for such a grant (as well as lacking the sales skills).

Oh, China Herald is a good non-echo-chamber site.

Hopefully I have now fulfilled my "obligations" on this topic.

RSF: Results of the competition for best blogs defending freedom of expression

Reporters sans frontieres - Blog awards 2005 results http://www.rsf.org/blog-awards-en.php3

"Reporters Without Borders selected around 60 blogs that, each in their own way, defend freedom of expression. The organisation then asked Internet-users to vote for the prize-winners - one in each geographical category."

Congratulations to the winners.

I was nominated, but some of the winners are far better deserving of an honor here. Particular attention should be paid to the winner in the Iran category, Mojtaba Saminejad. Says RSF:

"A weblog that earned its editor, Mojtaba Saminejad, a two year prison sentence in June 2005 (See : www.rsf.org/article.php3?id_article=12563). In a demonstration of solidarity the 10 webloggers named here, who were also nominated for a prize, all voted for Mojtaba.They were : Nikahang, Shabah, Mithras, Khorshidkhanoom, Z8un, Memarian, Ghaja, Webnaameh, Shabnamefekr, Shargi."

iLaw

iLaw, the Berkman Center's Internet Law Program, is being held again on June 22-24 in Cambridge, MA. Lawrence Lessig says: "The program is great fun, and you even get to live in the dorms! ... But I'm just (one of) the teachers. There are scholarships and group rates, so ask."

Last year, I was generously accepted to attend, and I had a very good time. Not the least because both Lessig and Zittrain praised my work to the entire audience (not every moment of my activism has been unhappy - just the overwhelming majority of them). I also put a lot of effort into the pre-class discussion forums, and that was apparently well-regarded.

But that was then, this is now. A year later, I'm in a much more unfavorable position with regard to the Berkman Center. A short version of the story: I had (very reluctantly!) done an extensive "Greplaw Interview" with a Slashdot-like site they sponsored. I was *asked* about censorware history and I related some of my tales of woe. Mike Godwin, an extremely well-known civil-liberties lawyer, took exception to, well, let's say, my description of his role in the historical account. *Months* later, he applied what he called "moral suasion" to the Berkman people, which I conjecture a non-lawyer would term saber-rattling about a libel lawsuit. In order to appease him, the Berkman Center then changed my interview to editorially feature various vicious smears. Quoth lawyer Peter Junger (thanks!):

It would be interesting to see what would happen if Seth should now threaten to sue the Berkman Center and Harvard for defamation. - --So interesting that I would be willing to donate a thousand dollars towards the legal expenses of such a suit and spend some time working on the briefs and pleadings.

The event deserves a long follow-up someday, which I've never been able to complete because it's so incredibly painful. But it was a major activism turning-point for me, that I had no good future in civil-liberties work. It wasn't the only turning-point, by far. But, e.g. it was pretty much the reason I didn't go to the open Berkman conference on "Votes, Bits and Bytes". In fact, I've never gone to an event there since. And I suspect it sealed my fate against ever becoming a Berkman Fellow (not that my chances were ever all that high, but between slim and none, slim then left the building).

So, regarding iLaw, it's problematic. One the one hand, there's the argument as to why let the poison kill? But on the other hand, the poisoned well can't be wished away. I wonder, do lawyers or A-lister's really get along after such actions? "Sure, you were blowing me off then, violating the pledges made to me about my interview, putting Harvard's name and credibility behind smears against me, simply because it was the least trouble - until some countervailing legal firepower on my side changed the equation. But these things happen. I sue you, you sue me, we're a happy family". Maybe that's another reason why law/policy just isn't for me.

Someone could say writing this post only makes things worse. Call that a further twist of the problem.

I suppose the "head" answer is what's done is done, and as the saying goes: "Remember, no matter how hard you work, no matter how right you are - sometimes the dragon wins." But the "heart" rebuttal is that doesn't make it any easier to bear.

[Comments off for this post, because I don't want to deal with trolls or misguided critics who might as well be trolls - if someone feels they need to reply, send email (I'll turn on comments for extraordinary cases of right-of-reply, but I hope that won't be necessary)]

[Update: I should have noted the back-and-forth was eventually "resolved" by a kind of moral equivalence of removing the editorial defamation AND the material Mike Godwin found objectional from me. Overall, per above, the result of the whole situation was enormously costly to me.]

SafeBrowse.com/"Safe Eyes", Consumer Reports, and reports undone

"Safe Eyes" / SafeBrowse.com censorware is now touting the Consumer Reports "Filtering software: Better, but still fallible" article:

Safe Eyes 2005 Rated The #1 Internet Filter!

Independent and unbiased testing by the leading consumer reporting publication confirms what our customers already knew....Safe Eyes is the best.

(note the message is a flash animation)

I'm not sure if Consumer Reports really did their testing as extensively as possible. I can see a way in which they took a reasonable course, which would have been the most obvious way to proceed if one is starting out with little knowledge of the internals of censorware (i.e. randomly try some URLs to see which are blacklisted). But there's much more information available, such as censorware blacklisting the Google cache, translation sites, and more. And note since it's a repackaged version of N2H2, all of N2H2's flaws apply.

In an alternate world, I'd do a report on this, with the "newsworthiness" peg about Consumer Reports' pick of censorware. It would then be publicized (remember, I'm talking fantasy here) getting the information out and being an important contribution to the body of knowledge on technology and policy. Which would be a reputation-credit for me which would have helpful implications in, for example establishing DMCA exemptions and discouraging potential censorware lawsuits.

In reality, I'd be marginalized to the same tiny fan audience which has heard it all before. While this audience is of course most excellent and discerning, they're also the choir, the convinced, exactly the people least in need of hearing my spiel. It's well past the point of diminishing returns. I'd again be faced with the temptation to go too far up the legal risk curve. And even if I kept low enough down so as not to have to worry, just in terms of PR I'd likely lose much more than I could gain (in the language of probability, I have a large negative expected value).

Recursively, maybe I shouldn't have written this post in the first place. But I'm inured to the sort of criticism I'll get for it. And I do think there's some value to documenting reports which won't be done because of the lack of support.

Lawrence Lessig and "activist's frustration"

Lawrence Lessig reacts unhappily to press coverage. Jon Garfunkel wondered why. This is an opportunity for me to write about net-politics and the press, from the trenches.

There's a particular malady of "activist's frustration". This can happen when someone deeply believes in an idea or cause, spends a large amount of time campaigning for the cause, and then finds their heartfelt efforts reported to a huge audience via at best garbled, confused, impressions in a hurried article by a journalist.

The canons of the craft include an unfortunate practice where it's frowned-upon for the article-writer to actually consult you to check if they got it right. The origins of this procedure are understandable, because for a political investigation, it's just tipping off a target who is likely to be upset. But for an intellectual, who cares passionately about conveying his or her ideas, it's very frustrating to have to suffer someone trying to reduce those often complex concepts to a little squib without even a sanity-check (e.g. "No, I don't really propose eating babies, that part was satire"). Here I don't mean reading back a quote for stenographic accuracy - I mean checking that it conveys what the person was actually trying to say (the Al Gore Internet story is somewhat illustrative, but that was arguably a deliberately malicious misreading).

When the article comes out, people then say "Why are you so upset? What's the problem? It's a reasonable article.". To be fair, it's not always clear whether the activist is overreacting to a merely less than perfect account, or if the other readers simply don't perceive how badly it's been butchered. But this can be another source of annoyance, as the activist is then faced with the task of explaining exactly why the article is so bad, to varying amounts of receptiveness to the concept ("Gee, it said you wanted to eat babies? But how is that different from your well-known concern about infant nutrition? Nutrition is eating, right? Babies are infants, correct?"). And then there's always the comments about how no publicity is bad publicity ("So they called you Mr. Baby-Eater - at least it shows you're important enough to be noticed. Maybe they'll get it right the next time").

There are of course far worse problems in the world. But the human irritation possible in this case should be clear.

Publicizing Achievements, and Reactions

"How could Nixon have won? Everyone I know voted for McGovern." (probably-apocryphal quote)

The reactions to my being nominated as defending freedom of expression have been almost entirely positive. Nonetheless, I've gotten some criticism about publicizing it.

There's two related variants of critics, asceticism and personal. The asceticism position holds that there should be a social taboo against mentioning one's own achievements, to discourage inflation and puffery. While I understand the general reasoning, and there is some validity to it, I think it can be applied far too restrictively and simplisticly. Privileged people have a multitude of ways to get others to promote them, ranging from outright hiring PR agents who launder press-releases, to just being in a position of power to attract sycophants. Those lower down have no such resources or favors to trade. It's not like I can grant somebody a lot of blog-traffic if they write how wonderful I am.

In terms of personal, well, for many years, I worked anonymously, and willingly let others take the credit. As, e.g. James S. Tyre wrote in an earlier nomination:

"All of what Brock [Meeks] and Declan [McCullagh] wrote came from Seth's work. All of the content of the former Censorware Search Engine came from Seth. ... Seth does not mind at all that it is his crack ... that is the basis of Bennett [Haselton]'s program."

Or Jonathan Wallace:

"The research for this article was all done anonymously by Seth Finkelstein; he did all the work and I got the glory for writing it up.

That was only the beginning; Seth did tireless and brilliant work after that to determine what censorware products really blocked. Seth is one of the heroes of Internet free speech; one of those rare people who do the work despite the fact that they know they will receive no credit."

In retrospect, I actually think I made a big mistake in not taking enough credit, and don't ever want to repeat it, but that's a topic for another post. The years of self-abnegation should be a definitive answer to personal criticism (but, sadly, I know that won't count).

Slashdot Reject

The topic of the power of the keepers of the media gates is a good occasion for me to give an update on my "Slashdot Prospect" inquiry of a few weeks ago. This concerned whether the recent "Slashdot Editor Upgrade" boded well for me to submit articles again.

Sadly, my query seems to have to been treated to a big fat Minus-One (i.e., ignored). So I'm assuming nothing has changed for me. And don't plan to pursue the question further.

But if I'm such an important accomplished DMCA-winning net-freedom-fighter, how come I can't get a little respect here?

[More reasoning in extended entry]

There's an old joke, that if a therapy patient is late for an appointment, he's hostile, if he is early, he's anxious, if he is exactly on time, he's compulsive. That sums up my Is-it-safe-to-go-back-to-Slashdot? dilemma these days - whatever I do is likely going to be used to attack me. My choice is just a matter of which personal attack should it be:

1) Not trying hard enough - too defeatist, didn't even make the effort, whiner.

2) Trying too hard - wasn't good enough, didn't do it right, submit-spammer.

Let us ponder the various merits and demerits of each case. Now, in theory, option #2 could lead to success of getting submitted articles accepted. In theory. But I believe it's an extremely reasonable position to take that, given the history associated with unfortunate events, prudence dictates some caution. Moreover, it's a tar baby. I'll always be criticized that whatever material I submit is not good enough (after all, there's much competition). Which leads to temptation to push the legal envelope in terms of investigations, in order to show the critics (who will never be satisfied anyway). In my view, the argument for theoretical success is more than outweighed by those extremely high negatives.

In contrast, option #1 is notable for what it's not, as in, not a lot of work. I won't be forever dealing with a swamp of fault-finding. I think I have a pretty good simple reply to the attackers, that certainly satisfies me in my own mind. It's very clean and straightforward - if I can't even get a reply of "It's OK now", I can't be expected to assume it's OK now (and such a reply would be minimal common courtesy).

Note I'm not 100.0% banned from having mentions appear in Slashdot, the problem isn't quite so extreme. But I've never been able to figure out the exact politics of it all. And frankly, I've stopped trying. It's definitely not the simple flame of do-something-newsworthy, because the coverage black-out (till the very end) of my DMCA saga was outright based on grudge-holding (and I bitterly resent it).

The marginalization has significant implications. It shows, objectively, unarguably, just how little my work has been valued overall (note not to the tiny fan audience which is reading this, thanks, but *overall*).

Slashdot Prospect

I finally wrote what turned out to be a long message to someone at Slashdot, regarding a possible sea change in the wake of the recent "Editor Upgrade". This isn't really an "open letter", but I figured I should blog it (below) for those interested, for reasons of transparency and self-protection.

Likely nothing will come of it. But I don't think I'll reasonably lose, while there is a very small chance that I could gain. The global significance is again the sheer lunatic absurdity of the idea that an ordinary person's blog compares against the "Short Head" of sites at the top of the attention curve. The chasm between me and Slashdot is around three orders of magnitude. That's about the gulf between a man and a mouse. A small mouse.

[Update: I should clarify that my overall thinking is that if things are OK now, I'd get a reply that they're OK now, and if not, not. That seems sensible to me.]

[The links aren't in the original]

Dear [redacted]

I'm directing the following inquiry to you as [identifying detail omitted]. Please excuse the length, I think context is important.

Now that the dust has settled a bit about Slashdot's recent, err, editorial change, I'd like to inquire as to what is Slashdot's policy about people repeatedly submitting articles, and, frankly, whether my name on a submission is still any sort of risk or not.

Previously, I had a major disincentive to submit anything, (though I'm grateful a handful of items submitted by others were accepted). It should not be debatable that Michael often acted maliciously with his editorial position. I think it's objectively true that he was Slashdot's most abusive editor in its entire history. So, I was in the position that if I submitted an article, I'd have to worry about him using it to flame me on the front page of Slashdot. Moreover, I wouldn't be able to tell if an article rejection was honest, or the product of his personal vendetta (obviously if someone hijacks and destroys a group's whole website, they're clearly entirely capable of lesser maliciousness). And then if I resubmitted a rejected article, for the slender hope at a chance at fairer treatment from someone else, I was risking having that portrayed as trolling or spamming (and again, given that I was accused of many things I simply did not do, this is a well-grounded concern). So I just didn't want to play that game.

There's been a few notable times in my life where, after a long-time attacker of me has done something spectacularly abusive to their associates, those people have stopped applying "moral equivalence" to the attacks on me, and realized I'd in fact been treated quite poorly. Ironically, one of those cases was when Michael proceeded to do unto the rest of CensorwareProject as he had been doing unto me for a long time (note, the final meltdown was not him versus me, for the searing reason that I'd been explicitly sacrificed at that point - it was him vs. everyone else). But, I'm speculating as to if he eventually did unto Slashdot as he did unto CensorwareProject. Not to the same extent, obviously. However, there's a chance that, let us say, there might now be some understanding borne of experience.

On the other hand, there's many more times in my life where people have not reconsidered their position, and mud slung at me has simply stuck. I think there's at least one person involved with Slashdot who is still convinced of some outright lies, because I was never able to get the necessary consideration to show the falsity (and I know if I press it, I'll just be told that condemns me).

Anyway, my question here is not about the details of the "Editor Upgrade". But rather, if there's been a concomitant reflection and re-assessment that would be helpful to me. I can't see myself ever going back to censorware decryption research. That damage is done. But it would be nice, e.g., to be able to try to get recognition related to my being an important expert witness in an Internet censorship law Federal court case.

I think, under the circumstances, this is an extremely reasonable query for me to make. I'm putting forth about as much rapprochement as I can manage (though I'm aware that what I can manage is often not at all the same as what would be required). Let me know, thanks.

[Sigh. This feels like begging. I tried.]

Details Why Slashdot "Editor Upgrade" Doesn't Revive My Censorware Research

"The evil that men do lives after them"

When I started writing a blog, I took a deliberate, considered, approach that I would try to combine the local - "personal voice" aspect being touted - with the global, accounts of my successes and failures in fighting for net freedom. I thought that was a workable blend of having something reasonably interesting to say, yet about more general subject matter. This arose from a mistaken belief in the practices of BlogGods (one mistake was that, for local celebrities, many people care about the celebrity's online diary - but as a general rule, people do not care about your online diary, there's only so much celebrity to go around, and it's exponentially distributed).

Anyway, in that vein, I hope it'll be useful to go over in more detail why the recent, err, Slashdot editor departure doesn't revive my censored censorware research.

I can feel it in my bones, part of the aftermath is going to be in essence that I'll hear, about free-speech activism:

"Oh, you're always complaining" - nothing satisfies you (as the saying goes, all I ask is the chance to prove that money can't make me happy), what more do you want (gushing publicity, a team of lawyers, $110/hour expert fees - or at least two out of three), IT'S ALL YOUR FAULT (how convenient a belief).

Now, a particular malicious person can do a great deal of damage. and it doesn't necessarily go away when they do (there are grudges which still remain against me, that simply will never be given up, it just won't happen).

But the key is to realize that those are specific examples of a general problem, of power imbalances, of how the system is set up. Is the flaw with monarchy having any particular "bad apple" as a king, or that overall, absolute monarchy is system which leads to bad governance?

I think of the outcomes of fighting against the DMCA and Internet censorship as a kind of probability-weighted mathematical sum of all the good things than can happen versus all the bad things that can happen. This sum is of course difficult and unclear to determine, but judgments have to be made on best efforts at estimation, despite a lack of Platonic certainty. Today, for me, the expected value of this sum is a bit less negative than it was e.g. a month ago. But "a bit less negative" is a far cry from "positive". And in absolute terms, negative is still negative. As I call it, the "three P's" - pay, press, (legal) protection, all remain solid obstacles.

It's not "Nothing's changed". Rather, it's "Too little has changed".

New Year's Resolutions 2005

What a drag it is getting old.

[Notice: This is not a cheery post ]

Happy New Year. Let me do a personal post looking back and forward.

To recap some recent turning points, in 2003 I was driven to quit censorware decryption research and then abandon major net freedom-fighting efforts (update: despite almost single-handledly winning a DMCA exemption) . I have a huge amount of censored censorware research which was destroyed or I can't publish - either nobody will hear it and/or I'll be sued. I still did some writing. But I think in 2004 I got yet another message that politics just isn't for me. I enjoyed attending the Berkman Center iLaw event, but ultimately it didn't change anything. Much worse, the Mike Godwin / Greplaw attack was another major turning point (I still should do an aftermath follow-up post on it all). My law/policy prospects never were all that great. But despite wishful thinking to the contrary, it matters to be targetted by a mean lawyer (who teamed-up with a domain hijacker).

Blogging doesn't work for me. The irony there this year, was when it was evident that I'd get far more reputation-points, far more easily, by inveighing against the Blizzard v. Bnetd court decision, than I personally could gain by actually co-writing a friend-of-the-court ("amicus") brief supporting reverse-engineering rights. In retrospect, it was absolutely the right thing, on a personal level, that I did not do that bit of fighting for net freedom, in terms of what would have been the cost to me. But I look back on it as a very sad commentary overall as to what gets rewarded. Drink the blog Kool-Aid, and you get attention and echoes and links. Don't, and you'll be talking to the crickets (but perhaps you like talking to the crickets, perhaps they make a pleasant sound, and anyway, who is to say that the crickets are not a worthy audience ...).

It was laudable that I was an expert witness in the Internet censorship / "community standards" case of Nitke v. Ashcroft (which was a pre-existing activism commitment). But, in terms of it being a reputation-builder for me, the lack of publicity was disappointing. Eventually there was an EFF newsletter mention, thanks, but that was the maximum (e.g. no Slashdot). I rate this, again for me, as another example of "I tried it that way, and it didn't work".

Overall in 2004 I passed another milestone in terms of giving up fighting to keep the net free. As a programmer, nobody is trying to tear me down (much less succeeding!), and it's an occupation both profitable and sustainable.

So for 2005, I resolve to maximize paid work, maybe more Google investigation again (Google doesn't sue!), and work on further avoiding the horrible negative that free speech activism has been for my life.

[PS: Of course, there's always people worse off than me, e.g. who need Tsunami Aid]

PR Flacking / Reputation-Credit II

Final arguments were scheduled to have been filed in the Nitke v. Ashcroft US court case, concerning issues of US censorship law, the Internet, and community standards (recall, I'm an expert witness for the civil-liberties side). So it's time for another round of flackery. I'm actually slightly optimistic this round, since I did get an expression of interest. So it's not all bad.

But again, I am not cut out for this sort of thing. I agonize over whether to make another (likely futile) try at working around Slashdot's shame of an abusive editor who has obvious, blatant, personal grudges. In general, I have to risk perhaps annoying people who ignored me in the first round. I'm not good at glad-handing. Even with better prospects, it's still a time-sink and draining. Oh, glory be the blogolution (link omitted there out of self-preservation) versus gatekeepers.

To the tune of Matchmaker, Matchmaker:

Gatekeeper, gatekeeper, give me a link.
blog to my blog, track me a back.
Gatekeeper, gatekeeper, read through your feed
And give me a traffic link.

[Update: Sigh, it doesn't seem as if there's much of a hook for a press story. There were a few schedule changes. If anyone cares:
The free-speech side post-trial brief was submitted on November 27. The government is filing its post-trial reply brief on December 23. The free-speech side rebuttal then will be filed on December 30. After the holidays, some of this material may get posted on the website of lead lawyer John Wirenius. ]

No friend-of-the-court ("amicus") brief reverse-engineering activism for me

I've finished discussing with a civil-liberties lawyer if we were going to respond to EFF's call for friend-of-the-court ("amicus") legal briefs to make arguments to try to reverse the atrocious anti-fair-use, anti-reverse-engineering, pro-DMCA, outcome of the Blizzard v. BNETD decision.

Note, in contrast to the subject matter of my last few posts, this wasn't an issue of my possibly being sued (well, not directly anyway). Rather, it was whether we were both going to volunteer to do supplemental work in the case. The possible collaboration idea was that, as a lawyer, he'd do the necessary formatting, structuring the argument in proper form, take care of the procedural details, and I'd handle as much of the draft writing as a nonlawyer could do, and possibly whatever technical factual research was needed.

Much went into discussion, about various possible angles and certain confidential matters. But before anyone reads wrongly between the lines, we didn't have any "personality conflict" (it helps that, e.g. we have a similar regard about some other people ...). But sadly, I eventually decided I didn't want to take on the effort.

I could have done it in theory. It would have been a lot of work, writing and doing supporting research. But almost certainly, I would get virtually no points, no "whuffie", no reputation-credit, for co-writing that amicus brief. At best, I'd have to run around with my poor contacts asking "Will you please echo this? Kindly report this? A-lister, I beg from you the boon which is notice of me. ...".

Frankly, I'd rather not go through it. This is another specific instance where I'd decided to stop fighting for freedom of the Internet. On a personal level, it's not worth it.

This post is not a pleasant one, and I'll probably get some flack for writing it. But in terms of activism, I think it's important to document how the attacks, the lack of recognition, the marginalization, have a destructive effect.

PR Flacking / Reputation-Credit Blues

I've written the following sentiments before, but I'll do it again: The blog-blather hyping no-barriers is misleading and downright cruel.

In the last few days, I've been trying to flack the previously-mentioned CDA trial press release. Besides the free-speech merits of fighting to keep the Internet uncensored, I'm told there's a personal reputation-building opportunity.

So, I want to be heard by more than the itsy-bitsy teeny-weeny fan audience. Note there's a connection here between the general very limited influence of non-A-list bloggers, and the specific lack of success I have in getting reputation-credit: It doesn't help much to repeat things to the same people who already have their opinions (positive or negative ...).

But the moment one goes beyond writing a public diary, and chatting with friends, to wanting to reach people outside the immediate social circle, the existence of gatekeepers is manifest. A small blogger trying to get an echo from a BigBlog is almost exactly a freelance writer trying to get an article accepted by an editor of a publication. Sure, you have the option of vanity publishing it yourself, cheaply nowadays. But to a very good approximation, barring the extremely rare lighting-strikes event, then nobody will read it.

To me, flacking is tiring, stressful, and not very successful. Some notes:

I asked someone at Slashdot if there was any policy at all about abusive editors who have obvious, blatant, personal grudges. No reply, but then, I didn't expect one.

I can't trust Greplaw anymore :-(.

I did manage to get gatekept into Dave Faber's IP mailing list, which is about the best I've achieved so far.

While maybe I haven't exhausted all options, I've nearly exhausted all I can manage :-(.

Press coverage

Today I was quoted in The Register (accurately!), about the email surveillance case US v. Councilman:

"Extending the court's disturbing approach, an entire surveillance system wouldn't be considered interception if it were built into local mail processing," internet researcher Seth Finkelstein told us.

Thanks!

I also should have mentioned earlier the latest issue of Walt Crawford's always-excellent library 'zine (not blog), "Cites & Insights". In the October 2004 issue, it's got an extensive recent copyright issues overview, which I am undoubtably biased in recommending because the coverage includes me (for the post Copyright Is Broken And Nobody Knows How To Fix It).

So I'm not at absolute zero with regard to notice. Just practically so, with regard to where I'd need to be in order to have much of an effect.

The fact that I don't write with a smiley-face () might be the difference between 300 and 400 readers. But I doubt it's the difference between 300 and 3,000. Press notice matters. Now, I don't mean to imply it's as simplistic as getting mentions, it's a complex process. I should be grateful for what I have. But, honestly, unedited voice, it also rubs my nose in what I can't have.

Blogiversary

I should have noted my second blogiversary earlier. Sadly, though, there wasn't much to note. I'm up to a readership of, I estimate ... 300/per day.

Not 6500/day. Not 2000/day.

300.

Whoopie. My reader-fortune is made.

Whatever connections or credentials or appeal or luck are needed to have high readership, I apparently lack them. Yes, bloggers are starving in Africa (or enslaved in Sudan). That's not a reason for me to keep banging my head against the wall.

I've slowed down on blogging before. But e.g. an A-lister spike, or some other reasons, were marginally encouraging.

However, the Greplaw attack was another, major, turning point for me in terms of being driven out of net freedom fighting. And I'm obviously not too successful at "citizen journalism".

Some people compare writing to doing exercise. They're moving their fingers on the keyboard, like taking a walk is moving one's legs just for the sake of moving one's legs. That's fine, if you want to do it. Whatever makes you happy. At the same time, I wish there would be more respect for an opposing belief that the destination matters, not the journey. The outcome, not the process. Sometimes, it's not the thought which counts (but the effect, or absence thereof).

Fair notice: Some future upcoming postings (possibly Banned Books Week related, maybe a Greplaw follow-up) are likely to be gloomy.

[Update: For those interested, the 300 breaks down into roughly 100 for Bloglines, 100 from the website feed, and 100 directly from the page. Now, there's some variation, and these numbers might be off by a factor of 2 - but they aren't off by a factor of 10].

Update on Greplaw Interview, changes and some aftermath

Peter Junger has a long post, More on the Greplaw Case, describing the latest updates, and how he approaches the whole topic:

.... the Greplaw Archive was again redacted to remove both Seth Finkelstein's explanation of what the Censorware Project was, and what happened to it, and the editorial insertions that were made in response to what [Mike] Godwin now calls ``moral suasion.'' The following statement has been inserted in the Greplaw archive in place of the removed material:

[This interview has been altered from its original format. Two paragraphs in the original interview have been redacted as of September 5, 2004.]

Note, again, I've mirrored it, and so has he (though I "accepted" the above official change).

Myself, I'm more focused on what I think of as the mathematics, which can be seen in this portion:

Shortly thereafter I found myself in correspondence with the director of the Berkman center and finally we spoke by telephone about this matter. It was clear throughout this correspondence and conversation that the director of the Berkman center felt that Greplaw and the Berkman center had been threatened with litigation, and not only by my comments about the possibility of Seth suing them.

Naturally, being caught in the middle of a dispute to which he was not a party, he regretted that the matter had arisen and also regretted the particular procedures that had been adopted in the case. It was also quite clear that he regretted the unfair way that Seth had been treated.

I view this as basically an example of "only have to be lucky once". Since there's no reputation-cost to making the threats, such a lawyer can keep attacking until one hits (and to add insult to injury, the outcome will be deemed my fault, or at the very best, a moral equivalence). Again, I appreciate the support messages. But, remember, lucky once ...

I'll probably never be able to fully convey to people that it's not about a flame-war. Rather, the problem is being under-powered and over-matched and hence being driven to quit. It's sad, unpleasant, and depressing to write. But this situation overall has been another turning-point for me.

John Young cypherpunk poetry (about Greplaw Interview discussion)

John Young, the cypherpunk poet wrote a poem (posted to a mailing list) about the fallout and arguments from Mike Godwin's actions and my Greplaw Interview. I found it amusing enough to repost, with a rough English translation of the poetry (what other blogs have, not merely cypherpunk poetry, but annotated cypherpunk poetry?)

The basic idea of the poem is John Young saying he enjoys a good flame-war, so people calling on me and Mike Godwin to be nice to each other should just shut-up, as flames are much more laudable (note the poetry often acts to obscure an idea which would be very debatable if stated in clear prose).

Greplaw Interview follow-up

The Greplaw Interview's situation has brought me some more supporters. I'll just do some links.

Peter Junger also mirrored it and wrote of a similar experience, and posted Another Reaction to Greplaw's Antics (written by Jonathan Wallace).

Derek Slater wrote of SethF, and a Gripe with Greplaw

Greplaw of course is not going to talk about specifics of what happened, but one can make a good guess.

Thanks much to all.

Seth Finkelstein Greplaw Interview

Seth Finkelstein Greplaw Interview
http://sethf.com/essays/major/greplaw-interview.php

[Now mirrored on my site. For explanation as to why, see:]

Peter Junger: Redoing What's Done
http://samsara.law.cwru.edu/blog/archive3/Redoing_What_s_Done.html

A to my mind horrible example--perhaps only because I have a couple of degrees from Harvard and like to believe that it would not condone such unfairness and stupidity, or at least not condone such stupidity--is the recent antics of the editors of a publication, or, as it says in its masthead, ``production,'' of the Berkman Center at Harvard Law School, called, in an apparent effort to repel anyone who might not be familiar with the names of Unix utilities, Greplaw.com.

...

When Seth complained to the editors of Greplaw and to the authorities at the Berkman center he was met with the ``Who me?'' and the `There Ain't Nobody Here but Us Chickens'' defenses. ...

[Note my chance of ever having a Harvard Berkman Center Fellowship is likely now zero. :-(. So, please, no more "advice" suggesting that.]

Internet Archive, DMCA Exemptions, and Press Echo Chamber

Last week, the Internet Archive got some press for DMCA exemptions. That's last week, not last year. Being that the DMCA exemptions were announced last October, this puzzled me. As a DMCA exemption winner myself, with much grief, the topic is very dear to my heart.

It turned into a minor case study of echoing.

We start with the base article, from The Inquirer:

Internet Archive has copyright problems
DMCA exempt for now

By Nick Farrell: Wednesday 11 August 2004, 07:17
[TheInquirer]
The US Internet Archive, which makes archival copies of software and data, said it was technically impossible to do its job because of the Act which forbids copying software. ...

This week the group announced on its site here that the Copyright Office has ordered a temporary exemption for the group's work.

This article is not quite correct, as once more, the exemption were announced in October 2003. And the Archive announcements page shows the particular page was posted on January 08, 2004.

But now the fun begins.

Echo - broadbandreports

Echo - FARK

Echo - LawMeme

Echo - LISNews

Echo - CD Freaks

Echo - Techdirt (but points for at least wondering about the age of the story)

echo, echo, echo, echo ...

All of this generated from one item that arose from a reporter writing about something which was in fact many months old.

And the moral of the story is: Nobody should ever tell me that the paucity of favorable coverage I've received was due to my censorware work not being worthy. That's a rationalization. Because it's too easy to kick me when I'm down, than to admit I was let-down.

Slashdot Effect

On Saturday, there was literally an astronomical blue moon. This meant I could get mentioned on Slashdot (thanks!). The statistics of referer hits to my JibJab lawsuit info post were:

Slashdot 1,603
Importance blog 404 (this is almost all a Slashdot reflect since posts there were also mentioned)
unknown 214
sethf.com 63

Note, that post was so much less work than a DMCA exemption or my Nitke vs Ashcroft Expert Witness Report.

Anyone who thinks there are no gatekeepers in the bogosphere, is simply deluded.

I'm not 100.0% banned from appearing in Slashdot. That would be a strawman version of the problem. Rather, I'm extremely marginalized, due to the complicated politics of the Slashdot de facto support connected to "editor" Michael Sims' domain hijacking (which is NOT a case of moral equivalence).

I've said this before. But every time I work through some numbers, some measurements, I think about how the Panglossian view is absurd and downright cruel. No, we are not a bunch of happy little blogging bears all playing patty-cake with each other. There are some animals who are far more equal than others.

Internet Censorship Law and Censorware Politics

[This is a REPOST of a message I wrote a few months ago. I'm putting it here again since I'm busy today with paid work, and besides, it says just about what I'd say anyway in reaction to the recent "COPA" net censorship decision.]

I probably shouldn't waste my time writing these posts, but the recent net censorship Supreme Court argument struck a deep chord with me:

Ms. Beeson argued that there were less restrictive alternatives to the pornography law: parents could now take matters into their own hands by using Internet filtering software and configuring it to reflect their own values. Congress already requires that schools and libraries use filters.

Chief Justice William H. Rehnquist and Justice Antonin Scalia seemed skeptical of that argument, however, and both noted that the civil liberties union had opposed the library filtering bill. Mr. Olson also noted that a number of Web sites gave step-by-step instructions on defeating the technology.

Here - not ancient history, not years ago, but this week's Supreme Court Internet censorship law arguments [update 6/29 - and now Supreme Court decision] - is an illustration of the problem I faced for so many years. Because the part of the civil-liberties strategy was, and remains, arguing favorably about censorware in this legal context. See Peter Junger's "least restrictive means" message for the best legal analysis (in my view).

I never opposed this as a legal argument. But for too long, for too many prominent people, that legal argument turned into a social argument for touting censorware. And so ...

If you said censorware didn't work, you were going against the strategy.

And that was bad. And thus the censorware critics had to be discredited. And here my trouble began.

In 1995, when I first decrypted censorware. I called my then-friend Mike Godwin, famous net.legend Internet civil-liberties lawyer, for help. Well, at that time, he was making policy advocacy statements such as:

This is why I believe that the right role for Congress to play is to encourage the development of software filters that prevent my child and others from being harmed in the first place.

Recall that the basic technology we're talking about here is the computer -- the most flexible, programmable, "intelligent" technology we build and market.

-- Mike Godwin, 1995 Congressional testimony

Thus he was not pleased to be informed about censorware's lack of "intelligent" technology. And I got an earful of all the (my description) dirty deals that were trying to be cut behind the scenes. I suppose now it's no secret that the ACLU blew me off when I tried to get their help (I still have the messages). But they didn't go on a personal attack-campaign about it.

Anyway, much has happened since then. However, some of the fundamental paradoxes are still in evidence - this week, in the Supreme Court.

I note this in an attempt at a "teachable moment". When I try to explain the background of censorware politics, the factors which caused things to evolve as they did, I often get trivialization and dismissiveness ("Petty bickering! Size measuring! Pissing contest!"). It's so easy to scream "EGO!", which means you don't have to think about anything.

There were, and are, reasons which drove it all, and still matter right now. But looking back on how it affected me, over nearly a decade: If I had to do it all over again, I wouldn't. Personally, it wasn't worth it.

On Not Taking Another Spin At Russian Roulette

[This is revisiting material regarding my having quit censorware decryption research, and DMCA Exemptions Diary - It's an update in view of iLaw versus head-banging]

Today we were unlucky, but remember we only have to be lucky once. You will have to be lucky always.

-- Provisional Irish Republican Army on the failure of their Brighton hotel bombing to kill British Prime Minister Margaret Thatcher or her ministers.

http://en.wikipedia.org/wiki/Brighton_hotel_bombing

I had a very good time attending iLaw, and did discuss grant possibilities with some people there. But afterwards, when I sat down and went through implications, the mathematics still didn't work out.

As today was Ronald Reagan's funeral, I'll borrow his famous question of "Are You Better Off Than You Were [Before]?" And the answer remains, on a personal level, I am not. After nearly a decade of very hard free-speech activism, despite the eventual recognition of a Pioneer Award, of a hard-won DMCA Exemption victory, I'm still begging and pleading, scraping and scratching. I'm not being theatrical when I say, as I did in the Greplaw Interview, that if I had to do it all over again, I wouldn't.

The people trying to do me ill, they only have to be lucky once. Because there is no downside, no cost, to taking sniper shots at me, they can keep trying until something hits: Leak sensitive information to a censorware company, try to poison friendships, attempt to alienate potential employers, etc. And when - not if they eventually do score, I will additionally be told, by people who should have helped me, but did not, that it didn't happen (because this salves the troubled consciences).

It's not as if I have prospects of a six-figure consulting fee in a court case, or a paid platform to 250,000 readers (also giving me the journalistic invulnerability to abuse virtually anyone), or even a faculty appointment anywhere. The very, very, best case seems to be now that if I pursue funding aggressively and skillfully, I might - not will, but might - get a minimal level of monetary compensation. That's the best case. Arguably it's an improvement of sorts, but really, not much of one. I have to be lucky always in order to escape the metaphorical bomb-throwing at me, nothing has changed there. I'm still way underpowered/overmatched, with expected negative return for my life personally.

I just can't take another spin at Russian Roulette again.

The Parable of Banging-Your-Head-Against-The-Wall

Once upon a time, a hapless activist contemplated the lack of effect, and personal costs, of banging your head against the wall.

Start of scene: Me, banging head against the wall: bang! ouch! bang! ouch! bang! ouch! ...

Then I received much "advice".

Me: "Maybe I should stop banging my head against the wall. It hurts. And it doesn't seem to be affecting the wall in any way."

Advice-Giver: "Bang your head harder. But don't ever say "ouch", because nobody likes a whiner. And look, you made a blood smudge on the wall, isn't that worthwhile?"

[Attempts to take "advice"]

Me: [Bang!] "Ow" [Bang!] Ouch, that's painful!

Advice-Giver: "Keep at it. And remember, I told you to stop saying "ouch". Maybe you should consider that you're not making any progress because you moan and groan so much? And that bloody smudge is even bigger now, isn't that progress?"

[one more time]

Me: [BANG! BANG! BANG!] GODDAMMIT THAT HURTS LIKE HELL!

Advice-Giver: "Well, I've given you my advice, and you just won't follow it. It's obvious that you get some deep satisfaction from playing the victim, since I've repeatedly said you shouldn't complain and you keep doing it. It's all your fault, since you won't do what I say. And you shouldn't be surprised that the wall is still there, with an attitude like yours."

The above is only slightly fictional.

Folks (to whom this applies), if your "advice" is essentially:

1) Work harder
2) Have a positive attitude
3) Settle for whatever you get

Then that is in fact utterly useless. Because it can be said for anything, regardless of merit or lack thereof. So it has no value in distinguishing good from bad. It's a secular version of "Trust in God, and if you fail, it's because your faith was weak.". That's not helpful.

Slashdot / Resurrect

I did not write the following:

Sometimes the truth is not in the middle. Sometimes the truth is simply that one person acted in a grossly immoral fashion, and everyone else is just trying to work out how best to respond. It is a disgrace to Slashdot that they continue to employ Michael Sims as an editor after his indefensible shutdown of the censorware.org website.

Paul Crowley did, in his Slashdot homepage. Thank you (even if I didn't write it, I thoroughly agree with the sentiments). And he noted my essay about Michael Sims domain-hijacking in a mere signature on a high-ranking comment in a Slashdot discussion today (a bunch of referers spiked my website traffic, and that reminded me to make a small update, that I'd quit censorware decryption, Slashdot's de facto backing of Michael Sims meant the legal risk was unbearable).

As far I can can tell, the very small expression of support above has now set off Michael Sims again to renew attacks on me. I also received a related email from someone else.

The mental model too many people have is just wrong. I will never, ever, be able to fight back against a Slash-smear. And there should be no moral equivalence here.

More some other time. This has decided me against any backsliding in doing censorware decryption :-(.

iLaw and movement

[Again, see Frank Field's index for notes and live transcripts]

Jay McCarthy had an interesting summary of my previous iLaw post:

Seth Finkelstein on his free speech work that was largely unfinished and how iLaw represents a movement to continue such ideas.

I raised an eyebrow at the word "movement", since it conjured up to me too many images of "The Movement" (note, I asked Jay about it, and he said he didn't mean it in that sense).

But it connected in my mind with part of the iLaw summary at Furdlog:

The Internet is what we make of it. There is no technological determinism; the Internet is shaped by the way in which we use it. ... If the Internet is not being shaped into the form we observe as being good, maybe we're failing to use it in a way that promotes "healthy" development in this space.

And what I said at the final session in commenting on a broad question about "What can WE do?" (from Furdlog):

Seth: It's not impossible for people to make a difference; it's just hard. The defeat of the state super-DMCA was accomplished by the grassroots just showing up! So, show up!

Whenever I say something like that, I'm acutely conscious to try somehow not be inane. I never want to come across like the vapid politician wannabe "Yes, I'm here to tell you, get involved! You too can be a part of the process, you can be a citizen, it's *yours*" That turns into snake-oil (and one result was far too may people were drinking Kool-Aid in e.g. Howard Dean, Joe Trippi, and Bubble Valuation)

But ... but ... there pathways where there's truth too. As I think of it, (remember, math/physics), it's a high-energy system which is in a state of flux and transition. And sometime you see a part of it whizzing by, and it's possible, relatively, to shove it into another trajectory (of course, that's a very dangerous game, since it's also true that the more energy it's packing, the more likely you are to get badly burned if you put yourself in the path).

iLaw was outlining all the various phase-changes going on in the Internet's materials structure, to be somewhat geekily poetic about it.

Which I suppose all leads to the missing nuance in much of what I try to convey - that the Internet can be shaped, a little, but this shaping is like dealing with explosive shaped charges. Because the arised from the intrinsic nature of the volatile and unstable status (and so can blow up on you!).

DMCRA (Digital Media Consumers' Rights Act), 321 Studios, and coverage

The "DMCRA", the "Digital Media Consumers' Rights Act", is an opposition bill to the infamous DMCA, the Digital Millennium Copyright Act. It's a horrible name, since it's so easy to confuse the two. Anyway, there's an upcoming hearing on the good bill (DMCRA) to modify the bad law (DMCA). I was curious as to how coverage of this hearing was being generated. I was, and remain, extremely bitter regarding how my own DMCA efforts were virtually blacked-out of press coverage, in part quite deliberately due to the Censorware Project / Michael Sims / Slashdot grudge-holding.

It turns out all the coverage I've seen can be entirely traced to a 321 Studios press release:

A Congressional Hearing for H.R. 107, the Digital Media Consumers' Rights Act (DMCRA), has been set for Wednesday, May 12, at 10:00 AM Eastern. ...

321 Studios Founder and President Robert Moore has been asked to testify at this historic fair use Congressional hearing. 321 Studios is the developer of the award-winning DVDXCOPY series of DVD backup software -- a product now banned in the United States after a group of Hollywood studios sued the company, and two federal judges decided that DVDXCOPY was in violation of the 1998 Digital Millennium Copyright Act (DMCA).

Now follow the bouncing ball. From appearing at Yahoo News to coverage at USA today.

This didn't just happen emergently, spontaneously, representing a groundswell of opposition to copyright restrictions and support for those who fight them. Rather:

And last April, when I did my DMCA testimony, after spending hundreds of dollars in expenses out of my own pocket while unemployed for a long time, I didn't have more hundreds of dollars to spend additionally on PR. I still don't have hundreds of dollars to throw around on PR.

Oh yeah, I forgot, I do have a blog.

Slashdot Interject, and Thomas Jefferson Muzzle Awards nominations?

Many types of events can serve to remind me just how marginalized I am in terms of ability to be heard. I just found I received more than 200 hits from one comment (albeit highly rated) made by someone else in a Slashdot discussion today. That's a sum which is more than my average daily blog item readership. At least it was a helpful comment.

Anyway, the discussion was about a censorship award, the "Thomas Jefferson Muzzles". These are given by The Thomas Jefferson Center for the Protection of Free Expression. In the discussion about this year's awards, one poster joked that "Slashdot Editors" should be nominated. Playing off that joke, Ian Clarke (Freenet creator, net activist), commented (Thanks, Ian!):

Sadly there is truth to this (Score:5, Interesting)
by Sanity (1431) on Tuesday April 13, @11:31AM (#8848574)
(http://locut.us/ | Last Journal: Monday February 02, @02:45PM)

Since you have raised the issue, and thus few can argue that it is offtopic, perhaps this is a good time to remind people that /. editor Michael Sims has been squatting on censorware.org, a domain previously used by successful anti-censorship group Censorware, who were forced to move to censorware.net. You can find the full story here [sethf.com], but basically he was their webmaster but took the site down after a nasty argument with one of the other participants. Irrespective of the rights and wrongs of that argument, it hardly justifies denying the public such a valuable anti-censorship resource.

Of course, what is particularly interesting is that /. editors (possibly including Sims himself) routinely use their unlimited moderation points to moderate any discussion of this as offtopic.

It will be interesting to see whether they will do this on this thread since it is pretty relevant to its parent which was moderated quite highly. Hell, I am even happy to risk getting bitchslapped [idge.net] to find out.

[Small history note - though for many reasons, I've made a public issue of it, Michael Sims' abusiveness was NOT only of me, by far. In fact, before the final censorware.org website take-down, I'd already been told explicitly that Censorware Project had decided I would be sacrificed versus Michael Sims' attack-spree, because that's what was deemed best for the censorware cause (it wasn't presented as an easy decision, or a happy decision - it was a realpolitik, unfortunate, regrettable, so sorry, sad, recognizing it would hurt me deeply, decision - but it was done all the same, and I've never forgotten it when people preach to me about what will happen in a censorware lawsuit against me). But the final censorware.org website take-down was in fact from Michael Sims retaliating against attorney member Jonathan Wallace ("His response was to take the site offline permanently."). I WAS NOT a factor by that point, I'd been "taken down" myself, metaphorically, by then.]

Y'know, a Muzzle Award nomination is actually a good idea. Contrary to accusations, I've never tried to get Michael Sims fired from his job as a Slashdot "editor", for the thoroughly pragmatic reason that Slashdot de facto supports him. It's no secret. The attitude, paraphrased, is that he might be a bastard, but he is their bastard. So he will be given reputation and pay no matter how much he uses that power to be destructive, up to and including the overall protection which enabled domain-hijacking Censorware Project - it's no skin off their nose.

But nominating Michael Sims for a real award recognizing the hijacking, destruction, and sheer censorship-aiding abusiveness ... I like it.

Stephen Manes vs Lawrence Lessig

Just as there are focused blogs for reporting on everything from gadgets to sex, at times I think there should be a blog which reports seriously on flame-wars. Not snarking, but akin to war reporting. That is, treating it as a serious topic, examining the reasons the parties took it to that level, the strategies involved, violations of unwritten laws, and so on. Note in war reporting, there's often NOT an assumption of moral equivalence, but that one party is right and the other wrong (which one is right or wrong is of course the whole debate, but it's possible to at least grasp that there's a moral difference between assault/battery and self-defense, even if both involve acts of violence.)

The merits of Manes v. Lessig are well-examined in the comments of Lessig's blog. (My view: while Manes scores a minor point or two, he's almost exclusively attacking a strawman, and Lessig wins overall on substance). Below I'm deliberately just giving a quick sketch of the flaming itself:

Manes:
"The Trouble With Larry"
("Contrary to Lessig's rants" ... "Freeloader Culture: A Manifesto for Stealing Intellectual Property")

Lessig:
"TalkBack: Manes"
("The only thing this claim demonstrates is that this reviewer didn't bother to finish reading the book")

Manes:
"Let's Have Less Of Lessig"
("... when it comes to copyright law, Lessig is Moron.", "Lessig claims I clearly didn't finish the book. I admit it took longer than I expected, given all the "idiot!" and "buffoon!" outbursts I kept penning in the margins, but I did in fact get all the way to the very last page.")

Lessig:
"It's Simple" says the MANes
("I hadn't realized how sensitive Mr. Manes is. For a guy who feels no hesitation in calling someone a "moron," "idiot," and "buffoon," it's a bit surprising he'd find this as "blustering and bloviating" or filled with "rage." Once again, his colorful abuse while funny, if a bit overworked, is still wrong.")

Note, in terms of journalistic levels, Lessig *does not* have to settle for being told to post his rebuttals as an obscure comment in a noise-filled forum, or on a website nobody reads. Nor is there much finger-wagging at him, saying nyah-nyah-nyah, you weren't perfectly polite, that proves you're in the wrong, the proper thing to do is: take it, take it, take it.

Expecting people to be saints is simply not dealing with reality. It only adds to the misery of the powerless.

EFF seeks technical director

[Precisely because I suspect people will suggest this job to me, I'll make it a blog entry. Please don't tell me about this job. I know. I'm on the wrong coast, if nothing else]

From LawGeek via Boing Boing (and the links to my site below are my own additions):

EFF dream gig: technical director

How's this for a dream job? EFF is looking for a Technical Director to run special projects to enhance liberty and screw with The Man (i.e., making kick-ass, user-friendly PVRs; turning white-box PCs into software-defined-radio spectral analyzers, hacking on anonymizing onion-nets, etc).

This person will be responsible for managing four members of EFF's technical staff and their various projects. Technical staff responsibilities include keeping our internal systems running and providing expert support to our attorneys and members. It also includes actively building, and supervising the building of, technologies that advance free speech and privacy. The technical director will be responsible for creating a cogent technology strategy for EFF. The director must be a team player. This person must be a good writer, good speaker and good listener. This person may be called on to be an expert witness, conference speaker, declarant in a court case, or debater against entertainment companies or government attorneys. Comfort with advocating for a position essential.

Internet Censorship Law and Censorware Politics

I probably shouldn't waste my time writting these posts, but the recent net censorship Supreme Court argument struck a deep chord with me:

Ms. Beeson argued that there were less restrictive alternatives to the pornography law: parents could now take matters into their own hands by using Internet filtering software and configuring it to reflect their own values. Congress already requires that schools and libraries use filters.

Chief Justice William H. Rehnquist and Justice Antonin Scalia seemed skeptical of that argument, however, and both noted that the civil liberties union had opposed the library filtering bill. Mr. Olson also noted that a number of Web sites gave step-by-step instructions on defeating the technology.

Here - not ancient history, not years ago, but this week's Supreme Court Internet censorship law arguments - is an illustration of the problem I faced for so many years. Because the part of the civil-liberties strategy was, and remains, arguing favorably about censorware in this legal context. See Peter Junger's "least restrictive means" message for the best legal analysis (in my view).

I never opposed this as a legal argument. But for too long, for too many prominent people, that legal argument turned into a social argument for touting censorware. And so ...

If you said censorware didn't work, you were going against the strategy.

And that was bad. And thus the censorware critics had to be discredited. And here my trouble began.

In 1995, when I first decrypted censorware. I called my then-friend Mike Godwin, famous net.legend Internet civil-liberties lawyer, for help. Well, at that time, he was making policy advocacy statements such as:

This is why I believe that the right role for Congress to play is to encourage the development of software filters that prevent my child and others from being harmed in the first place.

Recall that the basic technology we're talking about here is the computer -- the most flexible, programmable, "intelligent" technology we build and market.

-- Mike Godwin, 1995 Congressional testimony

Thus he was not pleased to be informed about censorware's lack of "intelligent" technology. And I got an earful of all the (my description) dirty deals that were trying to be cut behind the scenes. I suppose now it's no secret that the ACLU blew me off when I tried to get their help (I still have the messages). But they didn't go on a personal attack-campaign about it.

Anyway, much has happened since then. However, some of the fundamental paradoxes are still in evidence - this week, in the Supreme Court.

I note this in an attempt at a "teachable moment". When I try to explain the background of censorware politics, the factors which caused things to evolve as they did, I often get trivialization and dismissiveness ("Petty bickering! Size measuring! Pissing contest!"). It's so easy to scream "EGO!", which means you don't have to think about anything.

There were, and are, reasons which drove it all, and still matter right now. But looking back on how it affected me, over nearly a decade: If I had to do it all over again, I wouldn't. Personally, it wasn't worth it.

"Cites & Insights" March 2004, on hijacking of censorware.org domain

Walt Crawford's library 'zine (not blog) "Cites & Insights" in the March 2004 issue, has follow-up coverage regarding the hijacking of the Censorware Project domain renewed by Michael Sims. It's on page 15, "The Censorware Project Hijacking".

He recounts the various protests against Slashdot "editor" Michael Sims' hijack of censorware.org, and then writes:

You may know how I feel about slashdot: It's not the first place I'd go for sensible discussion and thoughtful disagreement. But the editors there have a louder voice (as much as 1,000 times louder) in the online community than people like Seth Finkelstein. He says he cannot continue to do unpaid Censorware and DMCA work that might get him sued, when that's combined with existing and potential damage from well-publicized attacks by a slashdot editor. That's a shame.

Thank you, Walt.

I've made a page annotating and collecting the statements, in case people are searching for the full text:

http://sethf.com/freespeech/censorware/project/

The Dean Scream vs. The Net Dream

The Howard Dean collapse has given me a new stock answer to reply to people who argue that the Internet is a power equalizer:

"Howard Dean had a website. Look how much good it did him, in fighting a media slam. YEARRGH!"

[And I can have my scream above as a multilayered reference, encompassing both the famous image driven into our collective consciousness by media saturation, as well as my own desire to scream whenever someone preaches the website-is-equality argument!]

In some ways, it's fascinating to watch the Who-Lost-Dean debate. PressThink has a great summary article on various explanations. One interesting underarticulated thread, is that here, we've actually run a large-scale real-world experiment in being heard versus power-laws in audience numbers. Again, Howard Dean had a web platform, an extremely well-known site as such things go, where people could go to get his side of the story! Remember the net utopian idea? Just have a site on The Internet, and the media can't smear you, because people can (gasp, choke, get a load of this) find it out themselves!.

But, overall, they don't. People don't painstakingly research an issue. Either they don't care, or they take the media report as definitive, or they just don't want to be bothered.

In general, the blogosphere just talks to itself. So the A-list posters, who have tens of thousands of readers, get a vastly inflated sense of their own influence. They're big fish (A-list) in a small pond (policy blogs). But when it comes to the general political mediamass, the blog-writers who aren't members of that punditocracy, don't even register. And even those who are media pundits, are low on the scale.

Just as the blog A-list is around 1000 times more powerful than the average blogger, the mass media A-list is around 1000 times more powerful still. Welcome to my world, folks. This is how it feels to be a minnow instead of a shark. When you get slammed, you get to hear dark mutterings from your friends about how threatening you were to the powers that be, or how we must redouble our efforts against The Man, or that your sacrifice was worth it because of the change it wrought.

But in terms of the cliche about a beautiful theory being slain by an ugly fact, well:

"Remember, no matter how hard you work, no matter how right you are - sometimes the dragon wins."

Moral Equivalence and Censorware Project's hijacked domain

[I did not write the message below. The message was written by Censorware Project attorney Jonathan Wallace, protesting an attitude of moral equivalence regarding Michael Sims' domain-hijack of the Censorware Project website. That is, moral equivalence is to treat the hijacker as morally equivalent to the people affected by the hijacking. The context in what follows, was a request (denied) to remove Michael Sims from an organizational mailing-list, due to his actions. This message has not been released before. Posted with permission of Jonathan Wallace.

Note the Censorware Project domain hijacking is not ancient history. It is ongoing. I post this in my blog now, because just two weeks ago (23-Jan-2004), Michael Sims renewed it again. However, the extremely popular website Slashdot has steadily maintained de facto support of Michael Sims as a Slashdot "editor" . This has all been a major factor derailing and destroying much of my anti-censorware work, it's not an inconsequential flame-war.]

[ Archived at http://sethf.com/freespeech/censorware/project/jw-moral.php ]

Date: Fri, 3 Aug 2001 12:49:03 -0400 (EDT)
From: [Jonathan Wallace]
To: [listmanager - a distinguished civil-liberties policy advocate/lawyer]
Subject: [about removing Michael Sims from an organization mailing list]

[Redacted], I wanted to make a couple of observations, off-list, about the following mail and about the question of whether Mike should remain on the IFEA list.

You mentioned that the former colleagues of the Censorware Project perceive things differently and that its not your job to sort things out. However, the facts couldn't be starker. Mike volunteered to act as the webmaster for our group. In a fit of anger, he unilaterally shut down our website, posted a notice that the group had closed (which was not true), and refused to send a copy of the content to the rest of us, or to transfer the domain. We pieced together the content from other sources, bought censorware.net and went on with our activities. Mike has in the meantime renewed the censorware.org domain, and continued to maintain a page implying that the group has ceased activities. He has not, as far as I am aware, been involved in any further free speech activism. Nor should someone who performed a private act of censorship by shutting down a site and withholding its content be welcomed in free speech circles.

Add to that the fact that Mike's only recent posts have been to flame other people. He is a disruptive influence, greatly increasing the noise-to-signal ratio. In fact, right now, he is the noise.

If the [redacted] webmaster had performed the exact same acts--destroying your web site and forcing you to reconstruct it from caches and mirrors--would you want him on the list?

As a member of the list, I find Mike's continuing involvement odd, unpleasant, and yes, somewhat deterrent. As a founding member of the Censorware Project, I also find that the continued presence of the guy who maliciously destroyed the site and almost shut down the group to indicate a certain lack of respect for the remaining members. This is not a case of people politely (or vocally) parting company after a policy disagreement. Again, Mike pulled the plug on a healthy, functioning site, wouldn't turn over the content, and bounced mail from journalists and individuals trying to contact us. The damage was very severe, though we have recovered.

Finally, there is an apparent breach of list policy (however informal). When Seth Finkelstein, a former Censorware Project member who left on good terms, asked to join IFEA, he says was told that he couldn't belong because he was not a current member of a group belonging to IFEA. Denying Seth, while allowing Michael to remain, seems unfair and inconsistent.

A word on my credibility: I am 47 years old, an attorney and former industry executive, author of Sex, Laws and Cyberspace, and (I hope you know) far from being a flame warrior. You might also want to check with Jim Tyre, who will verify what I've told you.

[Jonathan Wallace]

[Note from Seth - after that message, I was informed I could join the list if I wished, but Michael Sims would not be removed. The net effect would then be to set up a situation where Michael Sims wouldn't lose by attacking me, but I would lose by defending myself. That is, the moral equivalence outcome would mean that if he told a lie, and I told the truth, these would be accounted as equal parts of a dispute. I felt, similar to the above, I couldn't participate under those circumstances.]

Hijacking of the Censorware Project domain renewed again

Michael Sims, the Slashdot "editor", who hijacked the Censorware Project domain, recently renewed it again, continuing the hijacking he had done. The WHOIS data currently reads:

Domain Name:CENSORWARE.ORG
Created On:25-Feb-1998 05:00:00 UTC
Expiration Date:24-Feb-2005 05:00:00 UTC
[changed: 2004-01-19]

I did not write this. It is a public statement by Censorware Project:

Why were we down? Another former member, Michael Sims, jellicle@inch.com, angry at a perceived slight from one of us, shut down www.censorware.org. ... Mike, now that the site is back up, we are renewing our request that you transfer us the censorware.org domain. You're not using it for anything, and it will continue to confuse people and divert traffic away from this, the rightful Censorware Project site.

I did not write this. Censorware Project Attorney Jonathan Wallace did:

But all the hundreds or thousands of links Censorware Project had build-up over the years still pointed to the old site. In some cases, it was impossible to fix them, since they were from mailing-list archives, old web news pages, in print, or webmasters didn't want to be to be bothered with edits. And anyone who tried to get in touch with us by sending mail to the previous contact address would have their message trashed by Sims. ...

In short, this is a colossal and continuing act of malice by our former webmaster, Michael Sims.

I did not write this. Bennett Haselton (of Peacefire.org) did:

If the EFF webmaster put the eff.org domain in his own name and then hi-jacked it from the organization, he'd be branded a traitor and a pariah in the Internet community for the rest of his life, and nobody would ever forget what he did. ...

... nothing [Michael Sims] does [at Slashdot] will ever come close to canceling out the harm he did by shutting down the one-time Censorware Project website.

The only legitimacy that Michael has is through his position as a Slashdot writer; he has just enough writing skills to make his writings sound seductively intelligent to anybody who doesn't know the real story. ... Do you think they're going to let him put the Slashdot.org domain in his name? :)

I have written many things. But they have no influence, so I won't repeat them now.

It's not a trivial flame-war. The implications are profound. Particularly:

If I could not win when opposing the "colossal and continuing act of malice" of the hijacking, when Michael Sims is so deeply wrong to have stolen the Censorware Project site, and Slashdot should be ashamed for _de facto_ supporting him - then what the hell am I doing thinking I can prevail against a lawsuit from a censorware company? It is not a matter of values, but of implications. I don't want people to preach to me that their values are that the hijacking of the Censorware Project domain shouldn't have been opposed, yet I should have been willing to pauperize myself over years of censorware company litigation. Rather, the objective reality of it, is that if I couldn't win this battle against such a clear-cut immoral action, I have no chance against an even more powerful opponent in censorware companies.

Moving on meant quitting my censorware decryption work. The above is one reason why I had to do so.

New Year's Resolutions, past and present

So this is Xmas
And what have you done
Another year over
And a new one begun

HAPPY XMAS (War Is Over) by Yoko Ono and John Lennon

Let's see how I did regarding my New Year's Resolutions 2003, and then on to New Year's Resolutions 2004.

"Work on my website more"

Not really. I did blog almost every day, though since I'm not a talker, it seems it's really not for me.

"Don't argue with people about the battle-cry of You-Can't-Censor-The-Net".

Check. I had so many more arguments to have ...

"No censorware reports with any legal risk"

Check. In fact, sadly, I was finally driven again (as when the DMCA first passed) to completely throw in the towel, and quit censorware decryption. A very painful decision, writing off a lot of research. There's just not the necessary support for it.

"Pursue more opportunities."

Didn't have too many pundit/policy opportunities to pursue. Arguably I fell short here. I don't have the personality for it, and much of the effort is disheartening.

"Put getting paid before activism - because getting paid will get me through times of no activism far better than activism will get me through times of not getting paid."

Well, I won a DMCA exemption ("The Register's recommendation in favor of this exemption is based primarily on the evidence introduced in the comments and testimony by one person, Seth Finkelstein, a non-lawyer participating on his own behalf."). That was an achievement. But, impolitic as it is to say so, it was costly, in many senses. More so than absolute numbers would indicate. Not so much the hundreds of dollars in travel expenses out of my own pocket - but while unemployed, and also being told at the same time nothing much could/would be done against the ongoing vicious attacks, said attacks which actually ended-up being used in DMCA opposition argument against me.

[Digression - Y'know, as I write this, again it's a whole lot more pleasant being in the camp of Tiggers, vs Eeyores. Doing something is much, much, harder than being a preacher to the choir, and also fantastically less rewarded. Maybe, like liberals who become conservatives, I should convert in my middle age? It's a New Age of Effluence: Regurgitant Bubblocracy! or, Emetic Engineering In The Bogosphere (Maybe I could make that fly, but a good salesman has to either believe it themselves, or be pathologically shameless, which isn't me)]

So, for 2004:

More Google reports. There's just no comparison. Google doesn't sue.

Memoirs? There's not much interest in censorware history and as many readers as I'll probably ever get in my life, read the Greplaw interview, so I'm not sure that's worthwhile.

Other work on my website? I should do some.

Probably the best thing I should do is again resolve to make sure I pursue things which get me paid.

Blogging, talkers, and reasons

Perhaps I'm wasting an A-list notice, but Lawrence Lessig has a very nice post where he says:

I missed that Seth has a blog. He's been right about many things, but I think he's wrong about one thing: blogs are not just for talkers, for talkers have no time for links. The best blogs synthesize, and reflect. Not just news, but a way to triangulate, as Dave describes it. I hope he rethinks.

What I'm focusing on, is the issues of why people write, and trying to go past the basic point that some people write as a hobby. That is, we know some people enjoy writing, even if there is nobody reading. Which is fine. Just like some people like to spot the trains roll by, or watch birds, or be spectators for several hours while a few guys kick a ball around. There's nothing wrong with any of it, in my view.

But I think the conflation of writing a diary, which is for yourself and immediate circle, with reporting and commentary, which is primarily writing for other people, has been very confusing for the stock discussion of "What Is Blogging, And WHAT DOES IT ALL MEAN?"

Diary entries, press-releases, reporting, analysis - these all share an empirical characteristic of being frequent writing. But they don't all have the same functionality in terms of reasons to do them. That is, the motivation or reason to write a daily diary entry is not the same as a daily journalistic news roundup or analysis, even if both are "blog posts".

People who are in a writing business - that is, authors, journalists, lawyers, lobbyists, public-relations (I'm terming "talkers") - can benefit personally from doing a constant stream of writing. Even if the writing is given away, free, it can drum up business, get one's name out there, and so on. It's very rare to make money directly from a blog. But it's often useful to think of it as a form of personal advertising.

But I am not in a writing business. I'm not a "talker". By profession, I'm a programmer. After a while, it seems to make sense to ask "Is my writing of commentary, read by almost nobody, worthwhile"? What is this for?

Synthesizing takes time, effort. Can I ever, objectively, say "This isn't working" (for me)? Ever? Or as long as there is one other reader in the entire world, is that the standard of "working"? Note for diary writing, one might say that the definition is purely internal, and it doesn't matter if there are zero other readers. But again, I'm uninterested in keeping up a purely personal online diary.

So maybe writing frequent free barely-read commentary/analysis, just isn't for me. The easy answer is of course to say, yes, keep spending the time, keep putting in the effort, nose to grindstone, shoulder to wheel, etc. But this is not useful. Of course if there's one interested reader in the world, that reader is going to say they're happy to read it, it's almost tautological. An answer which isn't a platitude has to consider that it's not costless to do this. This connects in a deep way to the idea that "Punditry is not democracy". We aren't all going to be reporters/commentators, even if only simply because we all can't afford it.

Cake tastes great. But not everyone is eating cake, more like bread crumbs.

Jon Johansen Trial

Jon Johansen, one of the three people of a group creating the DVD decryption program DeCSS (note DeCSS history is not at all the common media portrayal of the lone teen cracker breaking Hollywood's codes, no disrespect intended), is now undergoing his second criminal trial. I just mentioned he's in fact one of three people in the group - the other two are staying anonymous. And as I say, it should thus be screamingly obvious why they are staying anonymous - including the German programmer "Ham" who actually did that particular DeCSS reverse-engineering.

There's coverage, of course. IP Justice has a nice press release, and a very good DeCSS Litigation Timeline. EFF has useful Johansen DeCSS case archives

Jon Johansen's been facing criminal prosecution for around four years now. My heart goes out to him on that point. A criminal trial is one of the most stressful things a person can face. And he wasn't the critical decryption programmer either, keep that in mind (again, no offense meant). People just don't get it, whenever I talk about how I don't want to go through something like that myself. It's an abstraction. They see him being made into a hero, at least getting a defense, and they tell me I'll be a hero too. But I've never, ever, gotten a defense, quite the opposite. The lack of support drove me to quit. And these sorts of risks are part of the reason.

Slashdot / Symantec

As a follow-up to my post "Slashdot Respect" from two weeks ago, it does seem to have been "merely a special favor which won't be repeated" as opposed to "a harbinger of things to come". That is, since my inquiry as to whether things had changed was ignored, it means things haven't changed :-(. Well, I appreciate the favor, I really do. But I'm also disappointed it apparently didn't portend some healing in the wake of my DMCA victory.

Adding to stir the pot, the rumor that Michael Sims had been fired as a Slashdot "editor", was indeed untrue. Which is consistent with the "special favor" case rather than the "change and healing" case.

It's easy, and comforting, to dismiss this all as "personal". But the implications are meaningful. No change means there's no reason which invalidates my having quit for lack of support. And where that mattered, for example, was where the thought crossed my mind of further investigating the Symantec Says No To Pro-Gun Sites story. I had thought it "old news", but it seems to have value. I've already decrypted that censorware blacklist, in the past. But is talking about the sites enough for coverage? I wish I could be supported here. And if not, I'll just be told my report wasn't worthwhile, it's hard to argue with that.

This is exactly the type of situation that I felt I needed to avoid. That is, being subject to temptation to push the legal boundary just a little further, just a little further, to go that much closer to the edge so as not to have the report languish in marginalized ostracized obscurity. And thus risk having it blow-up in my face in a devastating lawsuit.

The more things don't change, the more they stay the same ...

"Smith & Metalitz LLP", greetings!

I've often lamented the small reader-base for my blog. In response, sometimes I'm told that it's not how many readers you have, it's who they are. Maybe there's a grain of truth to that adage. Occasionally I find I have some very interest(ing|ed) readers.

So, I noticed some unusual blog activity today, from someone apparently searching intently for my throw-in-the-towel-on-censorware-investigations post (digression for a hint to the searcher: If the result you get isn't what you want, but it says "This is a prelude for some other material I plan to write in a few days, more then", well, it's a good idea to read a few posts later - and if you don't find it with one search, it isn't going to appear if you repeat the exact same search, no matter how many times you do it!)

Guys, in case you don't know, The Power Of The Google works in both directions. Peekaboo, I see you, "smith-metalitz.iipa.com" (IIPA == International Intellectual Property Alliance, Steve Metaliz == Axis-Of-Copyright lawyer, relevant here as the other, but minor, censorware exemption opponent, vs James Tyre, in the DMCA circumvention hearings).

So ... tell me, tell me, who you are, if you please. I doubt it's Smith. Could I be graced by the readership of Metalitz himself? One of the "associate" Smith & Metalitz LLP attorneys? Or, as I suspect, do I rank more a mere researcher, who doesn't even rate website entry status?

No need to be shy. I know you're searching me, and now you know I know you're searching me. Abbie Hoffman used to invite the government agents assigned to surveillance of him, to have (do) lunch with him. I won't go that far (David Burt is not my buddy, and neither are you). But I must confess an inveterate curiousity about opposition people who get employed to research me, and what they think. I never heard from the "Cooley Godward" reader, pity.

I've been lamenting I don't have an effect. But sometimes I suppose I should remind myself to be careful what exactly what I wish for, because I might get it ...

David Burt (N2H2/SmartFilter) Is A Sore Loser

[Note 11/23/2006 - Welcome, readers from The Register. Note the following is a much better and more detailed essay:

"DMCA Exemptions Diary, a.k.a. more Why I Quit Censorware Research" http://sethf.com/infothought/blog/archives/000456.html

]

David Burt, censorware PR flack, err, I mean "a spokesman for Secure Computing, which purchased N2H2, a [censorware] company" (and publicly dubbed by one lawyer the censorware "Iraqi Information Minister"), is also a very sore loser.

Recall, David Burt was the point-person for censorware companies in opposing the censorware DMCA exemption, against me as the prime advocate for the exemption, and I won (note other people were involved in both sides - e.g. James Tyre testified for the censorware exemption, Steve Metalitz against it, but the bulk of the work was me vs. David Burt). And he was paid to do it, as his job, while I paid out of my own pocket (hundreds of dollars in travel expenses) to do it!

Now some, err, anonymous person, has been posting taunting comments to various obscure DMCA exemption stories. Such as, from GrepLaw, the gem

I'll take Fries with that Big Mac, Seth (Score:0)
by Anonymous Coward on Wednesday October 29, @10:36PM (#1346)

Yes Seth, but what are you going to do for a job? You've been unemployed now for about a year, and isn't your unemployement running out? Will you be taking a job at McDonalds? I notice on Monster.com that there are over 50 job openings for web programmers. Why can't you even get one of these jobs in the now-booming tech sector? Is it because any prospective employer who googles sees what a psycho you are?

Or LISnews, the nugget

The clock's ticking, Seth... (Score:-1, Troll)
by Anonymous Patron on Friday November 14, @11:01PM (#1405)

...on that unemployment check. Bet those COBRA health insurance payments are eating into what you have left. How much time before you have to take a fast food job, eh, Seth?

Now, these are anonymous, right? But the style reminded me of, let's say, someone I knew. Well, it turns out, a little cross-correlating and tracking ... it might not hold up in court (just using that as a figure of speech), but, "HI DAVID!".

I'm not really complaining. These comments themselves don't bother me. And after all, I do take guilty pleasure in David Burt acquiring the nickname of "Iraqi Information Minister". In one sense, I'm doing this blog piece out of fun. It shows typical censorware company statistics :-). There are "over 50 job openings for web programmers" listed in the entire Boston area, covering nearly two months - the tech sector is not booming!

But more seriously, it does point up a key problem - no money in this volunteer free-speech work (still). I'm surviving now, with a little consulting, but the bubble-days aren't coming back any time soon. And that's much on my mind, as I've said, regarding censorware work being completely unsustainable. It's not my job, and no organization is funding me.

Remember, even given the big DMCA victory, I am no richer than I was previously. I still have to buy food and pay rent and get medical insurance, exactly as much!

Weighing coverage again

It's a sobering - and unhappy - thought to realize that all my DMCA exemptions victory press coverage probably didn't add up to the audience size from the (unrelated?) Slashdot quote of me.

The numbers are just frightening. I keep thinking that the smart thing to do, is just to take my "winnings", and leave the table, as I seem to have done better than expected right now. More some other time, as I work through the mathematics.

Slashdot Respect

I got an excellent, front page, mention in Friday's Slashdot article on Belkin Routers Route Users to Censorware Ad:

Incidentally, the Crystal Ball Award goes to Seth Finkelstein, who in 2001 quoted John Gilmore's famous aphorism about the internet, and asked "What if censorship is in the router?"

That's a link to my EFF Pioneer Award speech / essay. Very nice. Support.

Now, I don't know whether this is significant as a harbinger of things to come, or merely a special favor which won't be repeated. I wish I knew the deeper meaning of it.

Adding to stir the pot, there's a rumor going around in Slashdot troll-land (the underground of score-of-minus-one comments), that Michael Sims has been fired as a Slashdot "editor". (I found this out because, again, I got a bunch of hits to my website from people searching about Michael Sims - when that happens, I always know that something's up at Slashdot, it's a very reliable indicator). I tend to think it's not true, because if it ever did happen, the shouts of "And there was much rejoicing" will be heard much further than the dank troll habitats (believe me, I am not the only person who has cause here). But if anyone who might read this can authoritatively confirm or deny the rumor, I'd really like to know. It has relevance beyond my own curiosity.

Update 11/10: A source says there is no truth to the rumor :-(.

More DMCA censorware exemption press recognition round-up

I've been tracking further press of my censorware DMCA victory

I was mentioned in the EFF press release on the DMCA exemptions, which was also later echoed in the EFFector newsletter:

"EFF Pioneer Award recipient Seth Finkelstein was instrumental in lobbying for censorware exemptions to the DMCA for each U.S. Copyright Office rulemaking period."

Dave Farber accepted a posting about my DMCA victory for an Interesting-People list message

The usual suspects wrote blog entries, just for example, bIPlog and The Importance Of

I particularly enjoyed the item on the blog Penguinal Ebullience

Huge, massive, gigantic props to Seth Finkelstein, who flew out to testify at the spring hearing with his own scratch, and whose testimony utterly conflagrated the arguments of censorware maker N2H2's David Burt. I believe it would be hard to overstate Seth's influence in winning the censorware exemption.

And Lenz Blog - Seth Finkelstein's Success

Seth Finkelstein has won one of the DMCA exemptions recently granted by the Copyright Office by contributing important comments under difficult circumstances. Good news.

The obvious question, however: Why does he have to pay for his own plane ticket? Considering the impact he has made, I sure hope that won't be necessary the next time around.

James Tyre did a censorware.net piece "Censorware Exemption to DMCA Anti-circumvention Provisions In Effect For Another Three Years"

This is all pleasant. This is nice. Especially the EFFector newsletter and Interesting-People appearances, those are level 4 circulation (order-of-magnitude 10,000 readership).

At the risk of sounding like an ingrate, it still all feels a little light for the effort it took, and win. It's better to have publicity at level 4, than none at all. But my benchmark here was level 5, e.g. The New York Times, as again was given in the 2000 rulemaking to someone else (once more, I'm the "anonymous informant[s]" of that article). After all, there were many articles, including a full front-page Slashdot story on Static Control's inaccurate claim to have won - based solely on their press release (I need a press agent).

I know, the common thinking says one is not supposed to measure and analyze such things, it's not classy. But I long ago gave up any pretensions to joining high society, especially where it means denying the realities of mathematics.

DMCA censorware exemption and my press recognition

I've gotten a few more favorable articles (though, as Donna Wentworth at Copyfight.org accurately quoted me "Wow. Static Control is doing better in terms of press with their loss than I'm doing with my win!")

The Register, DMCA exemptions boost archivists, disabled:

The Library of Congress has the job of looking at rulemaking, or how the Act is interpreted, and it has identified four areas where copyright circumvention has legitimate, non-infringing applications. The DMCA criminalises circumvention of protected copyright digital material. But thanks in part to campaigner Seth Finkelstein, the oversight body has decided that for the next three years, bypassing access control in these areas won't result in a breach of the DMCA.

And I get to be one of the heroes on the Lessig blog:

"thanks, Seth"

The Copyright Office just released its report (pdf) on exemptions from DMCA restrictions. There’s good news and bad news. Let’s start with the good. The Office granted four exemptions. One of the four was an exemption for censorware. This exemption was argued for strongly by a number of people, but none argued it more effectively than Seth Finkelstein. Based largely on his testimony, “compilations consisting of lists of Internet locations blocked by commercially marketed filtering software applications that are intended to prevent access to domains, websites or portions of websites, but not including lists of Internet locations blocked by software applications that operate exclusively to protect against damage to a computer or computer network or lists of Internet locations blocked by software applications that operate exclusively to prevent receipt of email” are exempt from the DMCA.

I’ve been an admirer of Seth’s work for a long time, and as this shows, with good reason. Thanks, Seth.

Plus a Greplaw item DMCA Exemptions announced.

Also a Slashdot "leftover" on Librarian of Congress Posts DMCA Exemptions:

Update: 10/29 15:19 GMT by T: Take a look at Seth Finkelstein's site for an idea of how being pushy can sometimes be helpful; Finkelstein has loudly pushed for the importance of DMCA exemptions, including in Congressional testimony.

I shouldn't complain about that, it's nice and better than nothing, take what you get. etc.

I still want a New York Times quote though, as was given to someone else in the old 2000 rulemaking. I'm the "anonymous informant[s]" of that article - it was very painful to be confined behind the scenes, in fact being personally attacked, while seeing other people getting all the credit. The scars (and against me, the grudges) are still there.

DMCA censorware exemption win!

[How sweet it is ...!]

http://www.copyright.gov/1201/docs/fedreg-notice-final.pdf

The Register's recommendation in favor of this exemption is based primarily on the evidence introduced in the comments and testimony by one person, Seth Finkelstein, a non-lawyer participating on his own behalf. In addition to identifying a class of works that related to the specific facts presented, he identified the qualitative nature of the noninfringing uses for which circumvention was necessary and generally identified the technological measure which controlled access to this class. There was no dispute that the lists of Internet locations blocked by filtering software are generally encrypted or otherwise protected by an access control measure. The remedy sought was causally related to the noninfringing uses that are necessary to conduct research, comment and criticism on the filtering software at issue. Mr. Finkelstein also anticipated objections to the exemption and proved that available alternatives to the exemption were insufficient to remedy the adverse effect caused by the prohibition. The insufficiency of alternatives was supported by testimony and demonstrative evidence at the hearing in California by James Tyre. Finally, Mr. Finkelstein's succinct initial comment addressed the statutory requirements and thoughtfully analyzed each of the statutory factors required to be considered in this rulemaking.

The case made by Mr. Finkelstein for this exemption is also instructive for the manner in which it met the requisite showing. The evidence produced did not prove that a substantial number of people have utilized or were likely to utilize an exemption. On the contrary, the evidence tended to prove that very few people have had the motivation or technological ability to circumvent this technological measure, to investigate the lists of blocked sites in filtering software or to report on, comment on or criticize such lists. Although there was little need for an exemption in quantitative terms (i.e., in terms of the number of persons likely to take advantage of it directly), it was the qualitative need for an exemption that was controlling in this case; absent the ability of a few to carry out their noninfringing efforts notwithstanding the prohibition set forth in section 1201, the many would not reap the fruits of such efforts ­ the information, analysis, criticism and comment enabled by the quantitatively small number of acts of circumvention. The fact that the act of circumvention was unlikely to be widespread rebutted copyright owners' concerns of abuse and further supported the conclusion that the potential adverse effects to copyright owners would be minimal. The showing that the particular noninfringing use prevented was a result of the prohibition on circumvention and that these uses were necessary to criticism, comment, news reporting, teaching, scholarship, or research, further strengthened the argument.

DMCA Exemptions Diary, a.k.a. more Why I Quit Censorware Research

Or, as a subtitle, "I tried it that way, and it didn't work"

[A friend suggested I add this clarification:
I post the following in the same spirit as I imagine one has when donating one's body to medical science: to help others who might be inclined to take a similar path. There are harsh realities in activism, especially if done without organizational backing and support. Let's hope that what happened to me won't happen to you.

I also checked with James Tyre regarding the mentions of him below, so I'm not breaking any confidences]

People say to me, "Seth, ignore the snipers and smearers. Don't let them get you down. Just work on building up your own reputation, and you'll succeed" (with sometimes, an unvoiced - or even voiced - addendum, that if I don't succeed, it's all my fault for not working hard enough or not doing things right). The problem with this advice, is that I've never known a proponent to ever be convinced they were wrong.

The Digital Millennium Copyright Act (DMCA) law has a provision where one can petition for certain exemptions to the "1201(a)(1)" anticircumvention provision. This is a process done every three years, starting in 2000. Then, there were only two exemptions granted, 1) malfunctioning software 2) censorware:

The [Copyright] office received 235 comments in 2000 during the first review of the DMCA, says Rob Kasunic, a senior attorney in the Copyright Office. Congress mandated a review process every three years upon approving the law in 1998. However, only two of those hundreds of comments in 2000 resulted in new exemptions, Kasunic says.

Previous Success

Seth Finkelstein, a computer programmer from Cambridge, Massachusetts, wrote one of those successful proposals.

Over the past several months, I've been carrying almost all of the burden of advocating for the censorware exemption to be renewed. This should have gotten me enormous reputation-building. Yet it's been next to nothing.

To start, I write a long renewal proposal. Then the nightmare begins. I'm offered an opportunity to testify in Washington DC in further support. I accept hastily, then privately begin to have severe doubts. I'm a programmer, not a lawyer or policy person. I'm setting myself up as a big target. James Tyre, a lawyer and long-time anti-censorware advocate, argues to me that it's important to do this. If the censorware exemption isn't renewed, that would be like an admission of error by the Copyright Office, that it shouldn't have been made in the first place. And as a carrot, there would be (reputation-building) press coverage, since this was one of only two granted exemptions and the first DMCA testimony session.

With great trepidation and wavering, I go through with it, though fearing I'm going to be demolished. I have a long hassle getting identification documents so I can fly. At this point, I've been unemployed for a long time due to the economic tech-wreck. But nobody will pony up the hundreds of dollars in travel expenses (yes, I asked various sources, nothing, I'm not representing any organization, the money isn't there). I have to pay everything out of my own pocket, and I am extremely unhappy about that, given my having been out of work for so long. I'm getting up at 4:30am in the morning to be on a 6:30am plane to DC, thinking all along how very little I want to do this. As I start to make my way through the Washington Metro, someone snarls the entire system by jumping in front of a train. Which would be an irrelevant detail except that it strongly adds to my sense of being in a tragic movie via portentous omens.

But fate smiles on my testimony. My opponent from the censorware companies, David Burt of N2H2, self-destructs. He ends up compared to the "Iraqi Information Minister" (not by me, by a lawyer, Jonathan Band, also testifying in favor of the censorware exemption). It's a great victory, for the exemption, and me.

But there's practically no PR coverage or credit at all. Oh, it's mentioned here and there, on a few specialty sites and blogs. But I don't get e.g. covered by the New York Times. That's disheartening.

When the transcript of my session is released, James Tyre mentions that it would be great to do an excerpt for a Censorware Project article, but for various good reasons irrelevant here, he can't do it himself, so could I? Likely we can get it publicized in Slashdot. But it has to go under his name, because of all the grudges against me. Since Slashdot is supporting Michael Sims as an "editor", if my name appears as the author, he'll abuse his editorial powers to trash it immediately as a submission, and nobody will go against him. We really do have to work around that problem.

I agree to write it this way, though I'm not happy about it. Note in what follows, I'm partly to blame. Right afterwards, though, I go through a two-hour long legal consultation, briefing a lawyer on all my censorware and DMCA issues, which I find emotionally exhausting (my joke about this is that sometimes I don't believe all that happened to me myself, and I lived through it!). Then in the next two days, I get bad job-hunting news twice in quick succession. While this is going on, I try to structure the article, but have trouble organizing it, and ask James Tyre more about how long it should be. It turns out we don't have the same understanding, just one of those failures of communication between two people about an editorial perspective. He wants not just some cut-and-paste excerpts, but to cover background, history of the exemption, on and on. I try, but I just can't do it. Every word seems to be rubbing my nose in my marginalization. Remember, I have to write all this, to be published under someone else's name, with Censorware Project getting the PR, all because the pettiness cannot be put aside in the slightest. I am not imagining this.

Why the hell can't it be under my name? Goddamn it, I think I do deserve Slashdot coverage Why do we have to play these stupid grudge-games?

But the upshot is that he's "miffed" at me, and I will get - no - credit - at - all here. Again, partly my fault, and I accept that. We don't hate each other. He's not wrong, I'm not wrong, But still a disheartening outcome all around.

Then I help James Tyre prepare his own DMCA testimony, which goes very well. Afterwards, he says to me, that when the transcript is posted, I'll find myself mentioned favorably in many places. However, in the context of my quest for coverage, I misconceive that remark as more metaphorical, that this time around the PR circuit, I'll get some reputation-credit. It turns out, no, he merely meant I'll be mentioned favorably many times in his testimony. Well, that's nice, I appreciate it. But in practice, nobody hears it. Not compared to the way I'm being attacked every single day.

Then I basically write all of our third-round joint reply. Everything has to be researched, referenced, footnoted with page and line numbers, on and on. Remember, I'm not being paid for any of this. David Burt, writing the censorware companies' reply, is being paid for it, it's his job. He takes the opportunity to use Michael Sims' domain-hijacking and smears, against me, to try to discredit my research via personal attack. All implicitly backed-up with famous net lawyer Mike Godwin's support of those attacks. The end of that little story is that privately, I end up being brutally flamed. But this piece is long enough so I'm going to skip over an account of that.

After all was said and done, I felt somewhere between suckered and deluded. As I thought of it, it's another case where for a project, I'd had credit dangled in front of me. But when it came time to pay off, well, nobody home. Yes, I willingly took upon myself the burden of advocating the censorware exemption. At the same time, all the talk about how it was important, how there would be coverage, i.e. I'd be building-up my reputation - in the end, it came down to a very familiar refrain: So sorry, you really did deserve better, wish it were some other way, tsk-tsk what a shame ...

The bottom line, of course, being that I don't gain in terms of myself, and insult to injury, if I write of my displeasure at such an outcome, that's accounted even worse (WHINER!, want some cheese with that whine, opening a whinery, etc. etc.).

This all was, to me, the ultimate proof that the build-up-yourself advice just does not work (at least for me). I'm putting in effort way above and beyond here, spending money out of my own pocket while unemployed, drafting DMCA reply after reply. And I can't even get favorably mentioned for it! In contrast, while I'm making myself a target, there's no downside whatsoever to any of the snipers shooting at me. Well, it's not as if, perhaps, I was doing important things, like annoying an airline captain on a plane via a "political statement" (or troll-pattern behavior) about being a suspected terrorist.

There is no organizational backing for me. There is no PR support for me. No, it is not enough for a few people to say they think it's wonderful that I do all this. After a certain point, from sheer practicality, it has to be appreciated in a manner that provides me with the means to buy food and pay rent. When potential lawsuits enter the picture, my censorware work is completely unsustainable. It's not worth it.

The next time around, as far as I'm concerned, the DMCA exemptions can go censorware'd themselves.

Alex Halderman MediaMax CD3 paper legal threats, personal wrap-up

I've been writing much about the case where the SunnComm company threatened to sue Princeton graduate student Alex Halderman for his CD copy-protection research paper Analysis of the MediaMax CD3 Copy-Prevention System.

To conclude the series, I want to focus on a certain unintended consequence I know it'll have for me. In a paradoxical outcome, I suspect I'll get more grief, rather than less, for my own legal risks which drove me to finally quit my censorware research. That is, I can hear it already, people are not going to uniformly react along the lines of "Aha, now I see why such work is so stressful and dangerous, because of the legal threats involved". Rather I'm going to get too many reactions of "Look, the company made a lot of noise, but everyone rushed to Alex Halderman's defense, and he ended up a BIG HERO - so if you get threatened, you'll get that support too.". Unfortunately, this analysis, while superficially appealing (it means the person can feel good about berating me for being a coward, rather than feeling guilty they won't risk anything themselves to help me), isn't convincing.

Ernest Miller commented, in a Lawmeme article about the case:

I can't help but think that the immediate blogging firestorm and public outcry that occurred in response to the proposed lawsuit had something to do with the quick retraction of the threat.

I agree. As just discussed, the company was treated from the start as an "Internet laughingstock", and received intense ridicule. They were on the defensive, they were the ones who had to react to a storyline which painted them as idiots and charlatans (as opposed to the storyline they wanted, about "piracy and theft"). And I concur it made a huge difference in how much they wanted to pursue legal action.

When I talk about support, and how the lack of it has affected my own censorware work, people sometimes don't understand. One prominent activist has, privately, repeatedly flamed me for alleged vagueness in the term. But this incident is a perfect case study. The press reaction, the public outcry, in that crucial initial period, was all overwhelmingly favorable to Alex Halderman's work and plight.

However, that wasn't an accident, in my view, but flowed from the way events unfolded. Critically, researcher Halderman actually got the "first shot". That is, his work was covered favorably and extensively in its initial release. So the press already had a framework which put him in a strong position. And in contrast, this is why I keep saying it's such a problem that my own censorware research work will likely get marginal coverage, or even a hatchet-job or Slashdot-supported smear.

Imagine how differently events might have unfolded if the reporting was overwhelmingly echoing SunnComm's press release instead of laughing at it.

P.S.: As I was writing this, I happened to see Donna Wentworth's excellent DMCA v. Academic Research posting, concluding:

Eeyore has been saying this for a while now, but it bears repeating: if the Internet has opened up a new avenue for "amateur" investigation, the DMCA is closing it.

If even "legitimate" research is hampered by the DMCA, what about other kinds of research? What happens to the researcher who makes significant contributions to encryption or censorware research--but not within the traditional academic setting?

What would have happened to Alex Halderman, if he weren't a doctoral student at Princeton--and under the tutelage of Professor Edward Felten -- but, instead, next year's fifteen year-old genius, who happens to be schooled at home, with not a single lawyer-friend in sight?

[Note, that last isn't me, I'm Eeyore, and a thirty-eight year-old genius, with a lawyer-friend or two - but also more than one lawyer-enemy, and those matter too!]

Slashdot Disaffect

So, yesterday I received yet another traffic-burst of "Slashdot Reflect". This is where my website gets traffic because Michael Sims is doing something abusive on Slashdot (new readers: the Slashdot "editor" who maliciously domain-hijacked the original website of Censorware Project, but Slashdot de facto supports him). The particulars of yesterday's Slashdot rant aren't very interesting to me. It had something to do with Michael Sims using the front page of Slashdot to flame a CNN article ("grossly misleading, almost propagandistic", etc). Heck, he might even be right. But hundreds of thousands of people heard him, and enough wanted to check on this sort of behavior so that I saw that "reflect".

Anyway, that's just background, to the following: The DMCA exemption proceeding rulings will be released soon (by October 28). These are where the public can petition for an exemption to the DMCA 1201(a)(1) circumvention prohibition (for circumvention as an action only, not "trafficing"). I testified some months ago, bearing the brunt of the effort for the censorware exemption.

Now, If the DMCA exemption for censorware is renewed, I believe that's a great journalistic opportunity for civil-libertarians to win a PR round over censorware companies. I had a passing thought, related to some other credit issues, of trying to get Slashdot to run an article by me, discussing that DMCA exemption process in retrospect. Not a rehash, so much as what victory here means for technical types (versus what it doesn't!), and how we could build on it. Note I don't want to talk to lawyers, I want to talk to programmers. And to be heard, not be in a corner shouting to the wind.

Then I gave myself a sanity-check. Forget it. I'm not even going to try. I quit. I don't want to devote the effort, and likely get personally attacked as my reward. It's not worth it. If there's a victory, I'm going to have enough trouble just getting recognized with some credit. (I joked to someone that the Copyright Office could write "We are renewing this censorware exemption because we [heart] Seth Finkelstein", and I'd still be helpless against either press maliciousness or stupidity).

SunnComm v Halderman, speech, and the DMCA

One immediate note on SunnComm suing Alex Halderman case:

RESEARCH PAPERS CAN COUNT UNDER THE DMCA!

The DMCA forbids (emphasis mine):

(2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that - ...

Technical papers - even "pure speech" papers - can arguably be considered as technology under the DMCA prohibition above.

See the chilling footnote 275 in the DeCSS case:

FN275. During the trial, Professor Touretzky of Carnegie Mellon University, as noted above, convincingly demonstrated that computer source and object code convey the same ideas as various other modes of expression, including spoken language descriptions of the algorithm embodied in the code. Tr. (Touretzky) ... He drew from this the conclusion that the preliminary injunction irrationally distinguished between the code, which was enjoined, and other modes of expression that convey the same idea, which were not, id., although of course he had no reason to be aware that the injunction drew that line only because that was the limit of the relief plaintiffs sought. With commendable candor, he readily admitted that the implication of his view that the spoken language and computer code versions were substantially similar was not necessarily that the preliminary injunction was too broad; rather, the logic of his position was that it was either too broad or too narrow. ... Once again, the question of a substantially broader injunction need not be addressed here, as plaintiffs have not sought broader relief.

[Updated later - This is the footnote I really wanted, #135]

FN135. In their Post-Trial Brief, defendants argue that "at least some of the members of Congress" understood § 1201 to be limited to conventional devices, specifically 'black boxes,' as opposed to computer code. Def. Post-Trial Mem. at 21. However, the statute is clear that it prohibits "any technology," not simply black boxes. 17 U.S.C. § 1201(a)(2) (emphasis added).

Disclaimer: I am not a lawyer

Claimer: This is why I've quit. I wanted to publish a paper taking the exact same approach as the above.

AND I COULDN'T GET SUPPORT FOR IT!!!

It's too risky for me, and not worth it to continue.

Slashdot Genuflect

So, I've been tracking the hits for the "Google Spam Filtering Gone Bad" report. Up to this evening, it was about 500. Then it became one part of a collection of follow-up notes on Slashdot ("Slashback"). Below the fold (ie, you have to click through).

More than 500 hits in a few hours. It won't be ten thousand, but I guess it'll be 1500.

Thanks, you-know-who. I appreciate it.

Sigh. I really want to write to the management of Slashdot:

[begin fantasy]

C'mon guys, help me out!. For example, I spent hundreds of dollars, which was out of my own pocket, while unemployed, to go do DMCA testimony. Over the years, I've poured a huge amount of work into preserving net freedoms, at an enormous cost to myself.

Yet Michael Sims, who outright domain-hijacked Censorware Project's website, is being _de facto_ supported as a Slashdot "editor", and given the ability to rant and make personal attacks on the front page to hundreds of thousands of people. He's already been ruinously destructive, from the domain-theft to even breaking trust with sensitive legal material. It's no paranoia at all, it's already happened.

This is the real world here. It's not a trivial flame-war where we turn-off our computers, and go out for a beer later. People get sued. Even jailed!

RESPECT. It's the lack of respect, on many levels, which bothers me so much.

[end fantasy]

But if I sent that, I'd probably get in trouble. I've learned better.

This is why I've quit.

N2H2 "State Secrets" - censored censorware report and why - part 3

I never described why I called this recent series "State Secrets". That's a reference to an old joke about dictatorships:

Another joke is about a student marching down the Avenue of Eternal Peace with a banner saying "Li Peng is a pig"
The student is arrested, tried and sentenced to 20 years.
He complains that illegal protests carry a maximum sentence of five years.
"Yes," replies the judge. "Five years for an illegal protest and 15 for revealing state secrets."

http://www.dcs.shef.ac.uk/~yorick/com334/documents/a1f.txt

That joke really sums it up - for revealing N2H2's censorware blacklist is a pig, I might get a minor penalty for one issue, but 15 years (of litigation) over revealing their state, err, trade secrets.

When I first circumvented the encryption of N2H2's blacklist, I was amazed at how much of it was junk and duplications and obvious errors. Just full of garbage. Logically, what do they care? Who is looking?! They have an incentive to add as much as possible, for PR puffery (a blacklist zillions long). It was very evident that there were silly keywords being used to blacklist sites.

I wanted to publish these results to coincide with the District Court CIPA trial. But during the expert-witness testimony of the trial, N2H2 went into court with extraordinary legal aggressiveness, to attempt to prevent the court experts from testifying in public about its blacklist (on "trade secret" grounds):

"They say that certain things we talk about them having blocked will show the nature of their software, ..."

(note small world, that quote is from Declan McCullagh's (sigh ...) coverage of the trial)

At roughly the same time (actually a little before, but adding to the legal risk), Michael Sims, the Slashdot "editor" who had domain-hijacked Censorware Project's website, broke trust that had, in earlier times, been placed in him by Censorware Project's main lawyer (James Tyre). As part of the process of obtaining nominations for me for the EFF Pioneer Award, James Tyre had written (with my full consent) a detailed message to Censorware Project members cataloging every censorware decryption I'd done up to that time - names, dates, methods used. This was sensitive legal information, more so for coming from such an unimpeachable source.

Michael Sims publicized this confidential message to the world, including every censorware company which might want to sue me, just when N2H2 was doing its attempts to suppress public testimony (privately, it's a great message, later I put it on my site with others - but there's a time and a place for everything!). If N2H2 was willing to take such legal action involving court experts serving as witnesses in a Federal trial, the risk for a mere programmer in publishing more detailed and revealing work (even a civil-liberties award-winning programmer) was terrifying. The betrayal of confidence was an incredibility vicious and vile action.

The import of this trust-breach is often lost in various smoke-blowing. (for example, Michael Sims was particularly upset that James Tyre hadn't trusted him with the sensitive information from the start, ironically showing by his dishonorable actions why that lack of trust was thoroughly justified). People tend to get focused on the name-calling. But it was putting legally sensitive information in censorware company hands, while aggressive legal action was underway, which was most destructive.

I made a decision then: I'm not going to publish this work. The legal risk is too high. I don't have the support I need. At best I'll get smeared, at worst I'll get sued.

Remember, Slashdot continues to _de facto_ support Michael Sims, in terms of pay, reputation, and press-power. It matters. This is why I have to quit.

Time For Me To Quit Censorware Investigations, aka BACKER NEEDED

If at first you don't succeed, try, try again. Then quit. There's no point in being a damn fool about it. - W. C. Fields

Everyone has a breaking point, and it's been evident for a while that I've essentially reached mine. "Banned Books Week" is a good place to drive a stake into it. To differentiate this message, I'm having "Banned Research Week" where I'll outline specific research I can't complete and publish.

I quit. I'm giving up. I tried and tried, and I don't succeed. That is, after all I've done, over years and years, I still have no pay, no press-platform, no protection from lawsuits. I can't continue to fight against censorware as an unpaid, mostly marginalized, activist lacking any organizational backing. It's not sustainable.

The dismal mathematics seems unarguable. I cannot win, in terms of myself. It's not my job, I don't advance in a career, and frankly, I get precious little respect (not 0.00%, but very close to it). However, I can lose, BIG. At best, I might have to endure long draining litigation, stressful and destructive even if, on the off-chance, I were to prevail. And if I don't prevail, the consequences would be even worse. It's not worth it.

In retrospect, after I won an EFF Pioneer Award, I made what turned out to be an enormous error. I then did a large amount of decryption-based censorware research, as opposed to intensively seeking a policy-based affiliation. I thought I was on track to be a towering DMCA hero. I believed I had a pledge of (Slashdot-based!) press support, as well as legal backing. And that I could afford to volunteer. Well, it's a long story, but things didn't work out that way. The tech economy crashed, and many other legal cases superseded me. Moreover, either I was mistaken about the pledge of Slashdot support, or the person making it later decided to renege (without the courtesy of informing me).

The final result is I have to write-off a large amount of that research (some of which has already rotted away). Between "shouting to the wind" (nobody reading my work) and "telling it to the judge" (the inevitable result of publish work that absolutely will be read), I've been silenced.

Formally, this might be considered a call for backing and support. If manna from heaven came to me, if an organization said they'd give me press support and legal protection (not to mention some pay), then it might be possible for me to continue censorware work. But honestly, I have no illusions of success.

Note, please don't tell me, e.g., "Don't let the bastards grind you down". They did grind me down, by leveraging the power of the legal system to grind me up. Any advice must consider: How does this change the problems of 1) pay 2) press-platform 3) protection from lawsuits? If that isn't answered, it's not helpful.

Sadly, I've been "taken down", and to a great extent, by my own "side".

Slashdot Prefect

For my own protection, I suppose I should write about the following thank-you note I sent today:

Date: Sat, 20 Sep 2003 09:54:09 EDT
To: [Rob Malda (head of Slashdot)]
From: Seth Finkelstein
Subject: Thanks for the posting, and a question

Thanks for posting the article on Wednesday about my "Verisign Typosquatter Explorer" program. I was pleasantly surprised (at the fact of the posting itself).

Should I infer any deeper significance from that action? Frankly, I'm about to throw in the towel on censorware investigations. It's simply too much, to risk a lawsuit from a censorware company, yet have to worry about Michael Sims helping them attack me, up to and including possible abusive front-page Slashdot articles trashing me if I'm sued. Note one difference between him and me - I did not hijack the "Verisign Typosquatter Explorer" page into a "Smeared By Sims " page.

[The HTML links are not in the original mail - they're here for annotation]

Realistically, I don't expect a reply. I just had my hopes up for an unfortunate moment, symptomatic of my delusions of support. Note, contrary to accusations, this is perhaps the third time in my entire life for mailing Rob Malda (the first was to protest Michael's abusing his Slashdot editor comment-moderation powers, the second was the ill-fated code proposal at the time of the CIPA, Federal censorware law, trial, and somewhere he may have been on a cc line from someone else where I replied)

It's not that everyone at Slashdot loves Michael Sims (not what I hear at all). But as long as he doesn't go past being merely an embarrassment to them, he'll remain _de facto_ supported in terms of pay and reputation to - literally - lie, cheat, and steal, against anyone else.

I get much preaching about a "feud" and such, and that's just wrong. "Feud" implies some sort of rough equality of forces, apart from the moral aspects.

It deeply bothers me, that despite Michael Sims holding hostage, destroying and domain-hijacking the Censorware Project website, he's not a pariah. That was very public and on-going. He doesn't walk around thinking "Why did I ever betray the trust which was placed in me? Nobody who sees that will ever work with me.". By contrast, I do walk around thinking "Why did I ever do so much free-speech work? It wasn't valued. And I have to defend myself against all the attacks."

That's not a "feud". The outcome here doesn't seem to me to be that I should blithely get myself sued. Rather, again, I'm way overmatched for what I'm trying to do, and anything further will just bring me more grief.

This is a prelude for some other material I plan to write in a few days, more then.

Slashdot introspect

The god of Slashdot smiled upon me yesterday, and posted a front-page article about my "Verisign Typosquatter Explorer".

More than eight thousand readers so far, and around four thousand program downloads. Talked to a journalist today. And it's going around mailing lists.

I didn't have to worry about being sued. (well, I think, but reasonably, no, see, I'm really not paranoid). Verisign is not going to issue a nasty response calling me names. It wasn't even a tremendous amount of difficult technical work, compared to some of the censorware investigations.

I'm very happy to be getting this coverage. But I'm also thinking once again, it's just not worth it, in terms of anything which does have a legal risk, to be sticking my head in the lawyer's, I mean lion's, den, and hoping I don't get mauled. I've written this before, I'm extremely underpowered and out of my league in press-power terms, and this is yet another piece of objective evidence which confirms that conclusion.

I can hear the response already: "Seth, you're never satisfied. Look, look, you got heard today! That proves you are not as poorly-off as you moan and groan".

This misunderstands something: The god of Slashdot is not a jealous god. But he grants power to those unworthy of it, as they do evil yet are not shunned. He will not intervene if the heights of the journalistic pyramid are used to throw stones at me. And today is one more lesson, if another were needed, on such power.

Update: From talking to the journalist above, I have a small mention in the article: Verisign's SiteFinder finds privacy hullabaloo

Slashdot deject

Y'know, it's extremely discouraging to find that I'm recently getting more readers to my website as a result of Slashdot trolls, than I ever get from my censorware reports, when that work is constrained to publicity via third-string websites (sorry, my friends there, that's just the numbers - note I didn't say third-rate).

On Friday, I spent some time chasing around to several people to mention my research in connection with various post-CIPA (Federal library censorware law) efforts, to favorable results. But the sum total audience there seems to less than one popular Slashdot comment. Now, one could argue it's a much better class of people, quality over quantity. But still, the relative "reach" numbers are daunting.

The worst outcomes of my life have come from not believing in mathematics. And mathematics is staring me here in the face. I am caught between "shouting to the wind" (nobody reading my work) and "telling it to the judge" (which will be the inevitable result of doing work that absolutely will be read).

Update: Ambiguity ... Clarification: By "Slashdot trolls", I meant Slashdot's population of trolls doing troll things, not that I posted troll messages! I almost never post to Slashdot these days (note my uid is #90154)

"Personal" quote

I've gotten some criticism for my discussions of what enters into my thinking, and for detailing the problems I feel affect my activism work. I have an aphorism for this:

"Yes, it's personal. I personally don't want to get sued!"

More deeply, change is done by people, not ideals. To refuse to think about how people struggle to apply ideas is to refuse to think meaningfully ("the personal is political").

My quote describing recent censorware situations

This is how I was describing certain recent events:

"It's not like pushing on a string - it's like pushing on a porcupine quill."

The politics of power - implications for my DMCA/censorware work

Continuing further about the implications of power and prominence, now connect the just-discussed idea of "that, for some Very Prominent People, the definition of "people" is different" with the following portion of a favorite article of mine:

"Wanted: Loveable hero for copyright battle"
http://www.cdmediaworld.com/hardware/cdrom/news/0105/decss_2600.shtml

"As soon as the judge says 'hacker,' you know you've lost," University of Minnesota law Professor Dan Burk said. "There is an attempt to paint defendants as unsympathetic, low-priority, on the fringe--to make it seem like nobody respectable is going to be harmed except for weird hacker types."

That is, nobody who fits the definition of "people" in the above sense.
Just another small 'hacker'.

Ed Felten, law and policy debates, and being accused of lying

Edward Felten has an interesting post about a difference in thought processes between technologists and political people:

To a technologist, law and policy debates sometimes seem to be held in a kind of bizarro world, where words and concepts lose their ordinary meanings. Some technologists never get used to the bizarro rules, but some us of do catch on eventually.

One of the bizarro rules is that you should be happy when the other side accuses you of lying or acting in bad faith. In the normal world, such accusations will make you angry; but in bizarro world they indicate that the other side has lost confidence in its ability to win the argument on the merits. And so you learn to swallow your outrage and smile when people call you a scoundrel.

I've run into this phenomenon myself (except I'm not good at swallowing my outrage, so I suffer, and think I should get out of politics before I really get hurt), and I concur it exists.

What's going on is as follows: Law and policy, is, fundamentally, an undertaking where lying is expected. It's a tool, a strategic option. Not that everyone in those areas is dishonest. But being dishonest is simply considered, well, something like a lifestyle choice. One is expected to be somewhat tolerant, at least in public, of those who have a textual orientation different from one's own.

It's not that everyone in science is honest. But lying itself isn't a part of the workaday conduct (and the parts of the day where it is, are called, remember, "office politics").

In contrast, sometimes people in politics really don't understand why technologists are so upset. It's akin to the stories where the savage or alien race eats the bodies of defeated opponents, and they don't comprehend why this causes such a nasty reaction. Because to them, eating the body is a token of respect for a worthy fight, not a supreme indignity.

Hence to the savage and alien race of politicos, accusations of lying or acting in bad faith are supposed to be taken as making them sweat in the fight, not as hitting below the belt. It's very weird from the techie point of view.

I was going to tell my GetNetWise lawyer story here, but this piece is long enough already. Some other time.

Internet, equality, publishers, and California governorship

There's a common conception, that:

"On the Internet, anyone can be a publisher"

People tend to think of this as implying much equality. That somehow every net-writer is the equivalent of the New York Times (or Slashdot). But that's only a formal, procedural, equality, not a substantive equality. I've long thought the above phrase is akin to:

"In America, anyone can run for President"

Anyone sure can. That is, there's no law stopping you. But for all save a very few people, it would be, in practice, an exercise in futility.

Now, the circus in California from the recall election, has provided me with a marvelous way to make my point here.

There's an organization Run-For-Governor.org which is making a serious effort to have 1,000 (one thousand) people "run for the office of the Governor of the State of California." This is a deliberate tactic to "Help extend the absurdity of this recall election to its logical extreme."

On the Internet, anyone can be a candidate for California Governor?

You, too, can be a candidate for California Governor?!

But this will make you the equal of the political establishment in only the most abstract sense.

Why getting front-page trashed as a troll bothered me so much

Given some of the comments suggesting I was overreacting to being trashed as troll by John Gilmore on the front page of Lessig's blog, I should explain myself more. I understand where these comments are coming from. Indeed, superficially, I see where I might appear as someone who can dish it out but can't take it. Or that I brought it on myself by repeatedly going on about Gilmore and trolling. The moral equivalence is that calling powerful people on trolling, gives them the right to trash you in response.

It's not a matter of suddenly throwing a fit out of the blue. In general, I've long been bothered by a sense that I'm playing politics out of my league. That my "level", in terms of audience and press-reach, is way too low for the things I'm trying to do. And then that the implication of this underpowered/overmatched situation, is that I'll always end up with a negative result, personally, for anything I do.

Note this isn't saying the result might not be positive for the world. Indeed, here, I take heart that several people remarked that they found my arguments insightful and convincing. But they didn't say that to an audience anywhere near the numbers which heard me just being dumped-on. So the overall outcome runs, for me, I estimate

500? people hear the positive
10,000? people hear the negative

Whatever the precise numbers, I'm sure the negative outweighs the positive by more than an order of magnitude. I wouldn't be surprised if it's two orders of magnitude.

Someone with a comparable 10,000? reader audience - e.g. a popular blogger, or net journalist - can fight back. They can BE HEARD replying. Typically, I can't. And moreover, that number of people hears them all the time, so they generate comparable positive reputation. Almost nobody hears my efforts so that work doesn't generate anywhere near the positive reputation necessary to withstand the tearing-down from something such as the above. Yes, a few hundred people hear it, but they are a very atypical sample.

Now, abstractly, this may be tolerable when it's just name-calling. But my censorware activism constantly causes me stress concerning its legal risk and the possibility of a lawsuit. Yes, the work may be good for civil-liberties, but it's bad for me. For about the whole time I've been doing it, I've been deeply worried by the thought that if I DO get sued, I'll just be facing a prospect of overwhelming smears and attacks which I'll never, ever be able to counteract. In part because of the pounding I get from the result of this process of being portrayed so negatively. And given the CIPA decision, said thoughts have intensified, and which interacted deeply with this event.

The answer seems to be, don't do any of these things. NOT, do only those things preached to me as worthy. Just get rid of it all. This bothers me.

John Gilmore ("Suspected Terrorist") trashes me as a troll

My sins have come back to haunt me. John Gilmore has a front-page post on Lessig's blog, where he rebuts criticism of his actions in part by trashing me as a troll.

It's been interesting reading. I'd like to respond. I suppose the obvious place to start is with Seth Finkelstein's trolls. (Of course he is doing what he accuses me of - making outrageous statements and then chuckling when people take them seriously).

And later:

Some people here (including Mr. Troll) think that the minor risk that someone on the plane will have a panic attack after reading a tiny button, makes the button a "safety" issue, as if I had falsely cried "fire" and risked starting a stampede.

Well, yes, I do. The risk is foreseeable, and one can trivially take off the button, and the risk is eliminated. No-brainer. That's very much what I think.

But I have, for all intents and purposes, ZERO ability to shout this to a zillion people and defend myself against being called "Mr. Troll" (wasn't me who got an airplane turned around and started crying censorship over it!).

The way to success is saying simple, popular, demagoguery. The right thing for me to do was to join the chant-and-rant, to cheerlead along the lines of

"Another atrocity in post-Constitutional America! It's a terrible 9/11 loss of freedom, when a man can't even wear a "Suspected Terrorist" button on an airplane. A button's part of who you are, just like being Middle-Eastern or Muslim. How can an airline dare infringe on making political statements about being a suspected terrorist, in the name of "safety" and "security"? We must shout to the world about the grave Ashcroftian injustice here!"

Or at least keep my big mouth shut. Instead, I was dumb. I admit it. I said what I thought, which was that John Gilmore was being a troll. In my head, I know better than to do these things. But I just haven't taken the message to heart.

I have now got 1) John Gilmore 2) Brad Templeton 3) Larry Lessig, all somewhere between mad or unhappy at me. These situation are my undoing. I haven't learned that in politics, you line up or suffer the consequences.

Oh, I can attempt to defend myself by posting a comment somewhere, or my own blog, to the whole wide range of audience of dozens of readers. Whoop-de-doo.

It's not that, at some level, I didn't know I was playing with fire. Rather, in terms of heat and kitchens, I'm way too underpowered to survive. It's like a safety match versus a flamethrower.

Slashdot Reflect II

A while back, I wrote an entry about a "Slashdot Reflect", when many hits came to my site from a Slashdot discussion thread. In another example, I just saw a similar reflection. There was a burst of hits from an article - ironically posted by Michael Sims - which in part linked to a GrepLaw feature, a two-weeks-old Lessig interview, and in said interview discussion I had posted a comment. Follow? From Slashdot to GrepLaw to discussion comments. Where I had posted one of the comments. And that generated enough hits to my own site to stand out.

Y'know, no matter what people say in terms of preaching pollyanaism to me, it's incredibility dangerous that Slashdot puts this kind of "journalistic" power in the hands of someone who first held hostage all Censorware Project material, and when that failed (primarily, I believe, because I partially mirrored the material!), he domain-hijacked it - yet still, knowing all this, Slashdot de facto supports Michael Sims.

It's amazing. There's absolutely no downside.

Every time I do the mathematics on what I could face, in terms of hatchet-job when being sued, I shake my head. To risk years-long lawsuits for censorware work, with enormous sniping every step of the way, with no cost to the attacker, and yet there is no possible benefit to me ...

It's not worth it.

"Stages of truth" and "Stages of lawsuit?"

There's a famous quote

All truth passes through three stages. First, it is ridiculed. Second, it is violently opposed. Third, it is accepted as being self-evident.

Arthur Schopenhauer

I was thinking today there's perhaps a corresponding three stages of free-speech lawsuit:

1. First, I'll be told I won't get sued
2. Second, when I'm sued, I'll be told I won't lose
3. Third, finally, I'll be told that if I wasn't willing to be sued and lose, I shouldn't have done the work at all.

Update: A snappier way of saying the above three stages of truth:

1. Ridiculous, 2. Dangerous, 3. Obvious

And three stages of lawsuit:

1. Won't sue, 2. Won't lose, 3. All your fault

Jesse Jordan on being sued by RIAA

Jesse Jordan is one of the "RIAA 4", four students who have been sued by the RIAA, and have settled the lawsuits

For some reason I frankly don't understand, Jesse Jordan's settlement is in the news once more, which is leading his particular settlement being reported all over again. Not that the re-reporting is a bad thing itself. The free-speech side needs all the help it can get.

Anyway, deep down, in a huge discussion on his site http://www.chewplastic.com/ , are his comments on why he settled, paying his life's saving of $12,000, versus the cost of fighting a lawsuit. I find them cautionary:

*Re: Review, cont'd.* (Score: 1)
by chew on Tuesday, June 10 @ 16:08:36 EDT

Actually, almost all of my legal advice indicated to me that I would be able to win this lawsuit. If I won this lawsuit, I would be in for much more than just $12,000. Defending a lawsuit of this size would cost $250,000 at a minimum, so I'm told.

Even if I win... I get nothing back from them. If I lost? I would have to declare bankruptcy after giving up all of my money anyways, and I would have a judgement against me. Going to court in this sort of lawsuit (where the defendent is not a company and did not profit from its operations) is a lose-lose situation.

For the RIAA to take all my money in a settlement is very nasty of them. Even so, it was my best choice - as they did not give me any other.

N2H2 - "Edelman v N2H2 is now officially closed"

N2H2's (censorware company) Public Relations, David Burt, is currently posting around many places that the Edelman v. N2H2 case, a declaratory action to reverse-engineer censorware, is now closed:

Edelman v. N2H2, a case filed by the ACLU that sought to remove N2H2's legal protections preventing the publication of N2H2's copyright-protected database code, was dismissed in April.

The appeal deadline passed on Monday, 5/19. N2H2 was not served with any notice of appeal, and the court docket shows no notice has been filed.

So Edelman v. N2H2 is now officially closed.

I find his phrasing "remove N2H2's legal protections" to be interesting. Anyway, I've been responding:

As the saying goes: "Remember, no matter how hard you work, no matter how right you are - sometimes the dragon wins."

http://www.snapdragongifts.com/musgrave/dt1537.jpg
http://www.gryphonsmoon.com/Catalog/CrossStitch/pix/Dragon-Wins.jpg
http://www.simplyweb.net/jhirschy/dragon/sometime.gif

Given the various places he's posted it, and the fact that I have circumvented N2H2's secrecy about its blacklist (note MY phrasing), I wonder if he's gloating. Or maybe it's a warning.

Sigh. I used to tell David Burt, years ago, that he owed Mike Godwin a HUGE "Thank You". But I'd never tell him exactly why. Maybe he's figured it out

I don't mind saying that I didn't consider the case outcome to be good news for me.

Nu-gator-y

I wrote an article about Gator and submitted it to the community-edited-news site Kuro5hin.org. It didn't get enough votes for acceptance.

Sigh. In general, the closer my technical work is to being blockbuster and revelatory and an effort which absolutely demands attention - the closer it is to risking a lawsuit :-(.

Slashdot Reflect

So, my site got a burst of activity yesterday generated from referers from Slashdot. Was it some hard-earned credit from my extensive activism work? No ...

It turned out that Michael Sims, Slashdot "editor", had thrown a tiny temper-tantrum on Slashdot's front page, posting an article about Microsoft full of ranting e.g.
"You have seen the stupid Passport hole in an earlier story; also the iLoo, although that hasn't stopped you from submitting stories about it, oh no.".

How does this suddenly result in many hits on my site? Well, "FortKnox", a popular and prolific commenter, took Michael to task in a comment, for editorial conduct "Childish... just pathetic"". Which then generated a thread with enough references to Michael Sims' domain-hijacking so that there was spike in traffic to me.

Frankly, this all impresses me - and scares me - on many levels. It's easy to dismiss as merely pointless flaming. But no, I believe there's a great deal to ponder here. Initially, there's the humbling fact of how much comparative traffic it generated. That is, even a fairly minor critical thread is order-of-magnitude comparable to my site-readership.

More troubling, though, is someone's comment of:

I see references to Seth Finkelstein appearing already. With any Michael thread this is no surprise. I don't know who was right or who was wrong, but I do know that it has no bearing on Digital Rights Management. It's a private spat, let it stay that way. Taco clearly feels confident in Michael Sims and frankly, it's Taco's call.

There's one of the activism-problems for me, in a nutshell - "Taco clearly feels confident in Michael Sims ..." (Taco's in charge of Slashdot). Bennett Haselton has said "The only legitimacy that Michael has is through his position as a Slashdot writer ...", and it's true. Jonathan Wallace lamented "If the ACLU's webmaster had trashed the organization's site, I think everyone would pretty well recognize he was a Bad Character and Not To Be Trusted.".

But Slashdot keeps up Michael's reputation, and so his massive destructiveness, no matter how much it's denounced, has no consequences. Now, people tend to tune-out here, complaining about whining, but this is profound.

If Michael Sims goes a bit nutty about Microsoft and unappreciative readers, that hardly matters much per se, But it's part of a pattern of abusiveness, where he's overall given carte-blanche to make accusations on the front page of Slashdot, and the worst thing that seems to happen is it later might be changed. That's the power of journalism.

People do not understand my deep desire not to do legally-risk activism work in the face of journalistic invulnerability used with malice aforethought. If I get sued, I don't want to be fighting a hatchet-job posted the front-page of Slashdot (nor elsewhere, but that's another article). And that just doesn't get across. It's so monstrous, so contrary to mental models of reasonableness, that it's not credited.

To me, every element of my concern is backed-up with solid evidence. Michael Sims stole the Censorware Project domain (search for "flipping out on us", and I didn't write that!), broke legal trust placed in him with sensitive information about my censorware decryptions, and more. Yet he remains backed by Slashdot, and regularly rants and attacks from their front-page. It's no stretch at all that he'd do me ill there if he had the opportunity. After all, he's already done everything from hijacking an organization's domain, to breaching legal confidences, it happened.

It's not a "private spat", when I have extreme legal liability as my downside and the opposing downside is ... what? ... a few comments in a discussion-thread???

It's not worth it.

There Is No Lawsuit-Funding-Fairy

Following up my comments on the "RIAA 4" lawsuit settlement, I went and researched some numbers for showing that there is no lawsuit-funding-fairy.

In the old State of Oregon v. Randal Schwartz case (unauthorized security testing and remote access by a consultant turning into felonies), I just checked the amounts from the message at his information server, "The Fund Daemon" <fund[at]stonehenge.com>

Legal costs, total: $186159.85 . Defense fund: $22319.19

That is, 12% of the legal bill was covered by donations.

Another old one, the LaMacchia case (though very relevant to the recent Grokster, Streamcast win, for the David LaMacchia Defense Fund total defense contributions, I get $8343.20 .

I don't have good data for recent individual-defendant cases. I think people stopped publishing the specific numbers because the amounts were either embarrassing or discouraging.

But that's reality.

My censorware/DMCA activism month in review

Given the latest lawsuit topic, I decided to do a review of my last month or so of free-speech work. Is it worth it?

Late March: My proposed tutorial on censorware had been accepted for presentation at the 13th Annual Conference on Computers, Freedom & Privacy (aka CFP 2003). Then (literal) war was declared, and all conference tutorials were cut. And also cut was the travel/hotel expense money for tutorial presenters. I simply couldn't justify spending hundreds of dollars of my own money for travel/hotel expenses in order to attend the conference (it's not my job)

Late March: Gave a talk at MIT's AI lab (called it "Net Control"). Well-received, though only around 27 people showed up.

Late March - Early April: Went to the court dismissal-motion Edelman v. N2H2 hearing. This was a case asking researchers be declared to have every right to reverse-engineer censorware, and publish tools to do so. Ultimately, N2H2 prevailed, getting the case dismissed, roughly because the plaintiff hadn't done anything (not yet "ripe" for judgment). The legal core of the case, issues of "standing", (rightly) dominates discussion about it. However, as one of the few people in the courtroom (as a spectator! - this time ...), the most relevant aspect to me was the attitude of the judge. It was an almost palpable hostility against the ACLU side.

April 11: I testify at the Copyright Office DMCA exemption hearings. A grueling 22-hour trip, where I had to pay all my expenses out of my own pocket. I seem to have done well and made good points. Might even have preserved the DMCA censorware exemption, to be immodest. I received some private compliments for my efforts. But very few people hear about it all.

Late April: An opportunity collapses regarding my getting some extensive recognition for the above testimony. An off-and-on week of wrangling with various issues. Between certain legal discussions, my job-hunting woes, and various politics, it doesn't happen. It's the sort of thing where I think that if I were perfect, I could maneuver among all the grudge-holding and work/credit issues. But I'm just human. It's not a solution to tell me to be perfect, as nobody is.

April 30: Website server crash. The hosting company seems to have lost backup data too, and I relied on them. Days of work rebuilding everything. No, it's not just a matter of putting back static pages. When you have PHP variables, a cgi-script based blog, web-driven mailing-list software, and more, it's a massive job even to debug the restoration. The mailing-list isn't back yet, and some of its important data may be permanently lost.

Sigh. I don't know. I have a deep sense that, as I think of it, I'm disbelieving mathematics. It's again the old issue of what is sustainable.

"RIAA 4" lawsuit settlement

The news is making the rounds now, that the "RIAA 4" lawsuit for copyright infringements, against four students running network services, has been settled. I'd like to focus on the following paragraph:

The settlements will see each student making payments to the RIAA totaling between $12,000 and $17,000, split into annual installments between 2003 and 2006. The lawsuits as filed could have entailed damages (in theory) of up to $100 million.

ORDINARY HUMANS CANNOT FIGHT CORPORATE LAWSUITS! Nobody hears me when I say that. Last week, Matthew Skala had mentioned:

I remember that I drew a lot of criticism for settling the Cyber Patrol break case "prematurely", or "at the first threat of a lawsuit", but that wasn't accurate - Mattel et al. actually never threatened me, they just went ahead and filed two lawsuits without stopping to make threats, and an injunction was issued and the cases got pretty far before I settled.

I remember the arguments that settlement sparked, as I got some grief myself for privately defending his decision. It's too easy to fight to the last drop of someone else's blood.

When I talk about how these problems have chilled my own censorware work, too often it's just ignored and dismissed, because it's not in people's experience. Maybe the real-world aspects are just starting to penetrate the mass net-mind now. This isn't a game.

Update: Edward Felten has similar comments, ending:

In my view, these lawsuits tell us nothing new about the legal status of the kinds of general-purpose search engines these students were running. The lessons of these suits are simpler: (1) don't be a direct infringer, and (2) getting sued by the RIAA is expensive.

Now, I agree with those statements. But I'd like to amplify that these lawsuits do tell us something new - or at least reiterated - about who can afford to defend the legal status of such cases. That's the big problem. And too many people don't realize it. I quote Matthew Skala much on this point:

When we published the essay I didn't expect a lawsuit, but I had also thought, "Well, if there is a lawsuit it won't be a problem, because there are organizations that take care of things like that." I fondly imagined that in case of legal silliness, someone would just step in and say "We'll take it from here." What I found out was that those organizations, through no fault of their own, were able to give me a lot of sympathy and not enough of anything else, particularly money, to bring my personal risk of tragic consequences down to an acceptable level, despite, incredibly, the fact that what I had done was legal. Ultimately, I couldn't rely on anybody to deal with my problems but myself.

Some people learn that lesson a bit less impressively than I had to.

Too many people, especially techies, believe that someone is just going to step in and write a blank check for legal expenses. It's not going to happen. The implications which stem from this mistaken belief, however, are seriously debilitating. Just personally, I can't convey how much grief I've gotten from those under the mistaken notion that all I have to do is get sued, and the lawsuit-funding-fairy will appear. Or more generally, how much blather is based on the idea that someone else is going to do the legally-risky work (I call this the theory of the "Secret Society of Civil-Libertarian Circumventors"). THAT lesson, that there is no lawsuit-funding-fairy, and the consequences thereof, is profound.

Digital strategies, "real" world, again

I've still been pondering "the next step in the copyfight", as Donna Wentworth (Copyfight) put it.

I'm thinking about this from the exact opposite of an abstract perspective. Remember, about a week ago, I did a grueling, almost round-the-clock trip to the Copyright Office circumvention hearings in order to testify to renew the censorware 1201 DMCA exemption.

In some ways, this encapsulates many aspects of the problem. Rhetorical strategy? Check. I spend a great deal of time trying to be prepared to answer expected censorware questions. But money? My opponent, David Burt of N2H2, had his expenses all paid, and PR/lobbying is his job, not mine. Now, he may have been handed a big defeat, time will tell. And it's ignominious to get compared (not by me!) to the Iraqi Information Minister :-). But I keep thinking, I spent more than a month's health insurance premium, out of my own pocket, while unemployed, to do that testimony. What did it get me? I wasn't even likely to get much publicity/recognition out of it, especially given the Slashdot situation with "editor" Michael Sims. It's not sustainable

It's theory vs. practice. There's an old joke, to make lion soup, first catch a lion ... Many of the strategies mentioned aren't wrong, but they are hard to do. For example, if someone tries to co-opt forces on the other side, it's always a problem that they don't co-opt back. I can see where there might be battles of exactly this sort (in fact, that was a big problem with opposing censorware years ago!).

Back from testifying at DMCA 1201 circumvention hearings

It's been a l-o-n-g day, traveling to and from DC to testify about censorware at the Copyright Office circumvention hearings

One cab ride to the airport at 4:30 am ... $30
One plane ride Boston -> DC ... $123
One plane ride DC -> Boston ... $141
One hour of testimony (well, two) ... not quite priceless

[But the feeling of out-testifying David Burt (the PR rep of the censorware company N2H2) was worth a few of those bucks]

More later, after I get some sleep ... 22 hours awake today. Not the worst I've ever done, but I'm getting old.

Judges and character / motives of defendants

I've been thinking much about this old quote today.

[Judge Kaplan, in the DeCSS case:]

Defendants, on the other hand, are adherents of a movement that believes that information should be available without charge to anyone clever enough to break into the computer systems or data storage media in which it is located.

[Mike Godwin, Thu, 17 Aug 2000, commenting: ]

This passage is actually quite instructive -- it tells us that Kaplan decided the case on his perception of the character and motives of the defendants.

[I agree utterly and completely with Mike's sentiments, even if there is a certain irony]

More on no CFP 2003 for me ...

My joke about No-CFP2003-for-me:

"Where Saddam Hussein and Osama Bin Laden couldn't stop me, "the Benjamins" (i.e., the money) could do so".

That is, I'd gladly go to CFP 2003 despite war perils and terrorism threats. But having to shell out hundreds of dollars from my own pocket in expenses, is another story entirely.

Sigh. It's just not my job. I don't have a university or a think-tank covering my costs. Moreover, I've never gotten any money for my award-winning free-speech work, so it's not like the conference would be a trip to drum-up business (which it arguably would be for a lawyer or policy person). It's another indication that this activism isn't sustainable.

Gave a talk today at MIT's Media Lab

I gave a talk today at MIT's Media Lab. Around 27 people showed up. Since it's Spring Break, that wasn't too bad.

I called the talk "Net Control", and tried to get across that censorship, copyright, privacy, are all facets of the general problem of control of information. There's basically two possible positions, either information can be, or can't be, controlled. And no matter which one you pick, the implications are profound.

HTML-based slides are at http://sethf.com/talks/net-control/start.html , though it's nothing fancy.

Update: LISnews ran a story announcing it

No CFP 2003 for me ...

I was selected to present a tutorial at the 13th Annual Conference on Computers, Freedom & Privacy (aka CFP 2003): "How to Analyze Censorware"

But, while the conference will go on despite the war, all the tutorials have been canceled (not to mention the travel/hotel expense money for the tutorial presenters ...).

Sigh ... The tutorial page is still on the CFP 2003 website, (at least as I write this), and I've copied the description of my censorware tutorial below, just for fun.

T2. How to Analyze Censorware

This tutorial will discuss basic procedures and techniques for analyzing what is blacklisted by a censorware ("filtering") program. The emphasis will be on explaining the internals of the operations of the blacklists, focusing on how both extensive porn-passing, and collateral damage to innocent sites, are inevitable. A programming background is helpful, but not required, for the material. Due to the possible risk of arrest of the presenter, cryptographic circumvention techniques will NOT be mentioned.

Seth Finkelstein, Anti-censorship activist and programmer, has spent hundreds of unpaid and uncredited hours over several years to decrypt and expose to public scrutiny the secret contents of the most popular censorware blacklists. Seth has been active in raising the level of public awareness about the dangers that Internet content blocking software and rating/labeling schemes pose to freedom of communication. His work has armed many with information of great assistance in the fight against government mandated use of these systems.

Guilty pleasure from a _Register_ paragraph on Declan McCullagh

There's a fascinating passage today in a Register story discussing "Michael Savage":

His career path mirrors the trajectory of former woolly Carnegie Mellon liberal Declan McCullagh, now a lavishly-paid writer at CNET. Both realized the value of relentless self-publicity. And both - McCullagh, like Weiner - decided that principles are for fools.

You don't stay poor for very long if you can defend rich guys' their right to keep their money, each followed the dollar trail to arrive at their own, personal epiphany. Each advocates the gazillionaires' "freedom" to spend their gazillions. The knack to pulling off this stunt is in persuading us, dear readers, that it's our freedoms that are a stake. In all, it's a very simple equation, and one so alluring that it's never short of fresh McCullaghs or Weiners to heed the cry. There's one born every minute.

I'm just going to blog this now as-is, since I have to think about what what I can/should say. I'll merely note that the prospect of a DMCA hatchet job or worse from Declan McCullagh ("Another explanation is overly aggressive advocacy by groups like the Electronic Frontier Foundation ...") has been its own chilling effect on my censorware and DMCA efforts.

John Young poetry criticizing chilling effect fear

John Young is an architect, a 60's-thinking radical, and the maintainer of the volunteer government-security watchdog site Cryptome. He's also an accomplished amateur poet. He's a good poet, typically writing in complex, James Joyce, style of language and imagery (sometimes called "Younglish"). Not "Roses are red/Violets are blue/John Ashcroft is bad/And the Patriot Act too". I've occasionally remarked to him that his material is so demanding that almost nobody understands it, especially not in his audience. So he'd do much better in terms of having readers, if he un-baroqued a little. But I suspect he doesn't care about this.

Some months ago he wrote me a poem (posted to a public mailing-list) criticizing me over concerns of being sued over the DMCA and my feelings about the legal risks of activism (see, that's his skill, he can write poems about such topics, and they are even decent poems _qua_ poems). I was thinking about that material today, and since I occasionally annotate his poems, I decided to do that one. Even if it is attacking me, I still like it as a literary work, and again, it was in my mind today.

[My annotations in brackets]

Subject: Re: O'Reilly: DMCA demonstration goes out with a whimper
From: John Young <jya@PIPELINE.COM>
Date: Sat, 27 Jul 2002 11:33:23 -0700

Seth, you are right to warn of the risks of exceeding socially approved civil liberties. This will get you pats on the butt from those who benefit from such cautionaries. HP keeps a valuable employee, Bruce can forever talk about what he almost did but wisely pulled back. Not quite having it both ways but what passes for righteous hectoring and puling.

[This was in the general context of an anti-DMCA action which was called off because of jail fears. I pointed out I was not the only one experiencing a chilling effect.
"puling" is NOT a typo for "pulling", but is defined:
"puling - crying or whining weakly and detestably; plaintive"
Also note
"hectoring - intimidation or bullying"
]

Even so, we must be grateful to those who do not obey social pressure, even more those who disobey and keep it quiet.

[Resistance is good - quiet resistance is even better. The above is an allusion to the "cypherpunky" idea of Internet revolutionaries hidden by remailers and anonymity, so the authories can't reach them. At least for myself, I find that more a fantasy than a workable strategy overall]

For without such quiet courage millions of peasants of the colonies would still be serving a tiny band of ignorant pigs who inherited the appratus to impose fantasies of porcine superiority with masterful force, if force be needed when the cowardly, loud-mouthed comfortable intellectuals were not able to induce slavish obedience by tongue and quill confecting fearful warnings of the majesty of authority.

[Without courage, Americans would still be subjects to the King, because of the force of the King's army. And the army was only needed when the preachers and intellectuals weren't able to make the populace be obedience by talking about the power of the King.
The image: "ignorant pigs ... porcine superiority" is 60's-style language of the police/army/goverment-in-general as "pigs". ]

Vile allegations are that some of those unbrave hearts had the fear of erasure put in their skulls by a tap of the sword. And, with great relief at only a tap discovered turning tail gave birth to wisdom. Then advanced their brilliant career by essaying obedience as enlightened social justice, nay, more ingratiatingly, as essential orderliness for the authorities' benevolent protection of the commonweal.

[There's a rumor that some cowardly intellectuals were made to fear of death by raids designed to intimidate them. And when they weren't killed, they decided to advance their careers by writing that the King's peace was a good and necessary order for the protection of society.]

Yes, keep yourself employable above all else. Love those chains as if metal of honor.

[This mocks my concern about making a living. The image "metal of honor" is a pun on "medal of honor" and the metal in chains - more prosaically, "You wear your chains of slavery as if metal/medal of honor"]

[He didn't convince me differently - indeed, such attacks by respected people tend to have the effect of driving me away from free-speech activism. But it sure is different from the typical flame!]

MichaelSims, Domain Hijacking and Moral Equivalency

I should have mentioned this earlier, but with the Federal censorware law CIPA being argued tomorrow, it's important now.

Attorney Jonathan Wallace has a new account of the domain-hijacking of the former Censorware Project domain by the former webmaster, Michael Sims (yes, this is the same Michael Sims who works at Slashdot).

Some choice quotes, from Jonathan Wallace (i.e., he wrote this, I didn't!):

... hundreds or thousands of links which were put up elsewhere to Censorware Project content during our hey-day now, when followed, lead to Michael's denunciation of the group.

In short, this is a colossal and continuing act of malice by our former webmaster, Michael Sims. ...

Astonishingly, there were no consequences to Michael, as far as I know, for taking down the Censorware Project content and redirecting its substantial web traffic, first to a page which said the group no longer existed, and now to his rant against its members. We had some internal discussions about suing him to get the domain back.

If the ACLU's webmaster had trashed the organization's site, I think everyone would pretty well recognize he was a Bad Character and Not To Be Trusted.

See also the initial statement of Censorware Project (search the page for "flipping out").

And if people think this is trivial, note Michael Sims in his "colossal and continuing act of malice" has already derailed a great deal of my censorware work, and may lead in part to losing the DMCA censorware exemption. He's that destructive.

Crisis of faith for Lessig

In the wake of the Eldred decision, Lessig has posted a heart-rending self-examination, a classic crisis of faith.

It hurts to lose. There is a such a belief of justice in the world, of good triumphing over evil. Principled people who want to make the world a better place and believe in doing good works, tend to be particularly vulnerable to this process.

It's an intrinsic problem. If you believe one person (you) can make a difference, it can be crushing to be defeated (contrariwise, if believed you couldn't make a difference, you wouldn't have tried in the first place).

As the saying goes: "Remember, no matter how hard you work, no matter how right you are - sometimes the dragon wins."

Thoughts on activism and sustainability

Following on some of my recent New Year's Resolutions, I've been thinking again about what I term the concept of sustainability for activities. There are certain roles (professorish, legislator, policy, journalist, etc) which are sustainable, in that they are activities which can be repeated to the benefit of the person's life. If you are running the Make-A-Better-Net foundation, you can always continue the Make-A-Better-Net foundation. If you're doing a job (writing, academic, industry, policy), then you can advance in that job. If you're developing the WhizBang system, you can continue working on the WhizBang system.

But if you're playing Russian Roulette with lawsuits, and you keep playing Russian Roulette with lawsuits, the eventual outcome of continuing that process is likely to be extremely detrimental to the person. That's a big problem. It's not sustainable (nor, unhappily, is it profitable).

Some of my New Year's Resolutions for 2003

Work on my website more (add more essays, maybe put up some of my collected material on the history of censorware politics).

Don't argue with people individually about the supposedly inevitable failure of censorship. Nobody who is just discovering the battle-cry of You-Can't-Censor-The-Net is interested in hearing differently.

No censorware reports with any legal risk unless I'm 100.0% backed in advance, with lawyers and press. It's just not worth it otherwise.

Pursue more opportunities. Maybe try to use my Pioneer Award credentials for some sort of position for punditry or policy ('cause, pundits and politicos don't have to worry about getting sued)

Put getting paid before activism - because getting paid will get me through times of no activism far better than activism will get me through times of not getting paid.

OSCON speech quote, activism, and one's life

This quote from Lawrence Lessig's OSCON speech has been in my mind lately:

Because if you don't do something now, then in another two years, somebody else will say, OK, two years is enough; I got to go back to my life.

DMCA Exemption comment - it's done!

It's done! My DMCA Exemption comment (for censorware blacklists) has been submitted. A version is available at:

http://sethf.com/anticensorware/legal/dmcacom.php

Copyright Office - DMCA comments need to FOLLOW THE SPEC

The Copyright Office is reminding people who want to submit comments on the DMCA 2002 rulemaking, that comment have to follow their format. (see my guide - How To Win (DMCA) Exemptions And Influence Policy) If the comments don't follow the required format, the comments don't get considered.

The Copyright Office comment submission form now says (their emphasis):

Important Note: Most of the comments received thus far do not comply with the requirements for submission. Comments that do not meet all of the requirements will not be considered.

Before submitting your comment attachment, verify that your comment attachment:

• Includes the commenter's name;

• Includes an identification of a particular class of works proposed for exemption on the comment attachment;

• Numbers each particular class of works, if more than one class of works is being proposed for exemption;

• Provides a summary of the argument for each class of works proposed for exemption; and

• Provides particular factual support/legal argument for each class of works proposed for exemption explaining how the prohibition on circumvention of technological measures that protect "access" to copyrighted works is adversely affecting identifiable noninfringing uses of that class of works.

Cases, Trials, Stakes

This week, we've had the Elcomsoft trial (Dmitry Sklyarov), which started out as a criminal case (Sklyarov spent months in jail even before the trial, then had the charges dropped against him in return for testimony).

Jon Johansen's trial is next week, December 9 - 13. Note this is also a criminal case.

I've been following, with great interest, Edelman v. N2H2 ("I don't want to go to jail. I want to go to law school.") - though that's a declaratory case (i.e., pre-emptive). I suspect a decision is near in that one, though I could be wrong.
(Update: I'm wrong - the latest information is that there won't be a decision until at least March 2003)

A week and a half from now is the deadline for DMCA exemption submissions. My slogan: "The lawsuit you prevent may be your own"

Sigh. This isn't a game. It's frustrating that so many people don't seem to understand that. This isn't a playground, where we go inside for milk and cookies after we finish calling each other names. It's not a pointless flame-war, where we can shut off our computers and go out for drinks later. The stakes are very, very, real.

Press-reach of my DMCA exemptions guide

My guide on How To Win (DMCA) Exemptions And Influence Policy seems to be getting around. An item about it ran in EFF's newsletter EFFector:

Seth's guide explains the process in clear and simple English. The guide tells you how you can submit effective comments and participate in shaping copyright law policy. This is your opportunity to let the Librarian of Congress know how the DMCA is impacting you. If you are having difficulties making lawful use of particular digital media because of a technological protection access control, we encourage you to submit comments to the Librarian of Congress.

It's showing up in places from Dave Farber's IP list and comp.dcom.telecom to applelinks and even a blues-music listserv.

Impressive (well, by my poor coverage standards). It makes such a difference, to be supported. The risk/reward ratio of punditry and policy is so attractive sometimes, as opposed to programming.

How To Win (DMCA) Exemptions And Influence Policy

Date: Mon, 25 Nov 2002 08:07:11 -0800
From: Lee Tien
Subject: guide to DMCA "exemption" process -- 3 weeks left
To: Law & Policy of Computer Communications

EFF is pleased to present a guide to the DMCA "exemption" process.

http://www.eff.org/IP/DMCA/finkelstein_on_dmca.html

Under this process, the Copyright Office of the Library of Congress must make a triennial inquiry regarding adverse effects of the DMCA's prohibition on circumvention on "certain classes of works."

If adverse effects are shown, the office can "exempt certain classes of works from the prohibition against circumvention of technological measures that control access to copyrighted works." The exemptions only last 3 years.

The author, Seth Finkelstein, is one of the very few people who succeeded in arguing for an exemption (for the act of circumventing access/copy controls on censorware blacklists) in the last round (2000). [The Copyright Office received many comments and rejected the overwhelming majority of them; I think in the end only 2 or 3 exemptions were created.]

The upcoming round is the next one, for 2003. "Written comments are due by December 18, 2002."

This is about the only part of the DMCA that can mitigate its fell sway, so if you have any interest in the topic at all, it's well worth reading.

Lee
--
**********************************
Lee Tien
Senior Staff Attorney
Electronic Frontier Foundation

Musing on a conference proposal: A DMCA Speech-In?

I was trying to generate a good proposal for the 13th Annual Conference on Computers, Freedom & Privacy. Last time around, I sent in an idea about a tutorial to evaluate censorware, but that didn't make the cut. Maybe I'll renew that proposal. But I was trying to come up with something more intriguing. It's a hard process though, since the idea would need to be "edgy", without having sufficient liability to be cutting oneself to pieces. And it's sometimes not clear when one is on the bleeding edge (and about to be cut to ribbons).

I think the fundamental suppressive strategy of the DMCA is more solid than some would grant. It's classic - pick off the "ringleaders" (here, the programmers or professors) with legal liability, and no matter how much noise is made by everyone else, choking that bottleneck works. Some people get to be celebrities or niche-celebrities. But as I recall from a book discussing legal cases against activists, it's important to keep in mind that there's not much celebrity to go around.

Who-gets-paid, and an N2H2 (censorware company) potkettleblack

I've been through N2H2's (a censorware company) motion to dismiss the case Edelman v. N2H2 (regarding the right to examine censorware blacklists). Let me write just one note today.

On page 3 of the motion, N2H2 starts off a section by writing:

"Edelman, who has in the past been paid to examine N2H2's system opposed to Internet filtering, ...."

Now, now, N2H2, you're not a charity. Moreover, it's not as if employees of N2H2 haven't been paid by parties seeking to impose mandatory censorware laws, such as: (emphasis added)

Courts: Library Filtering Of Internet Sites Found Unconstitutional
...

Filtering companies reacted defensively. "I think they are just holding filters up to too high a standard," said David Burt, director of public relations for N2H2. Although Burt's company is officially neutral on CIPA, he was a paid consultant to the Justice Department on defense strategy.

National Journal's Technology Daily, 05-31-2002

Note: Myself, I've never gotten paid for any of my anticensorware investigations, but I wish I had!

Another "journalism pyramid" height-check

It's a very slow day, so I'll do another height check of where I rate on the journalistic pyramid.

There's still some legs in my most recent anticensorware material
"SmartFilter stupidity - books sites as SEX"

I received another 250 or so hits from a mention in a news compilation from " Heise Online", a German site. I think the article is noting poor coverage of Internet issues, and links to me in a sentence reading "Are there no unbanned books"?

Another German-based site, stop1984.com, had my report on their news list, which was good for around 100 hits.

I'm without PR in my own land. I received more coverage here from websites in Germany, than websites in the US!

The Empire Strikes Back

I read through the entire N2H2 response (the motion to dismiss) in the Edelman v. N2H2 case. I'm not sure what to write, what I can write. It's times like these that I think about what's at stake, and the costs involved. I often tell people "This is not a game". There's nothing like reading legal briefs full of lawyer-flaming to bring that home.

This week's "journalism pyramid" height

Time to measure my height on the journalistic pyramid this week. My last anti-censorware material "SmartFilter stupidity - books sites as SEX" , meant to tie into "Banned Book Week", garnered around 500 hits. The majority of them seemed to come from library mailing-lists, since a notice was send around to those lists due to that tie-in to banned-books week. Perhaps I'm being unreasonable, but under the circumstances it was very disappointing.

Interestingly, there was a drop-off in interest on GrepLaw between this material and the earlier "SmartFilter stupidity - school sites as SEX". The school material received around 136 hits from there, but the book material only about 78 hits. Lisnews, however, showed less of a drop, at 52 vs 44.

Sigh. I'm not of the opinion that if I get just one reader, it's worth it.

My height on the "Journalistic Pyramid"

A while ago, I wrote an essay: "The Internet and the Journalistic Pyramid".

The point is that the Internet arguably shifted slots on the "Journalistic Pyramid", but it's still a pyramid

The number of hits on my recent anti-censorware material, "SmartFilter stupidity - school sites as SEX" is around 300. There's more reading than that. But it sure isn't much of an audience overall, sigh.

Banned Websites Week?

[I wrote this for a library list]

Next week is "Banned Books Week". One idea I've had, was that it seemed a very natural fit to include censorware issues here, to have "Banned Websites" too. I've thought this would be a good way to talk about censorware in a civil-libertarian framework.

Last year, I was planning to send out brand-new lists of sites banned by censorware, on every day of the week. But then came the September 11 events, so there was no interest in such lists. This year, there still doesn't seem to be much interest, or maybe I'm ill-situated to do that PR.

For all my technical expertise, I don't think I'm skilled in pulling off any sort of "Banned Websites Week" campaign. So I'll just toss this concept out to the list to see if anyone would like to refine or somehow implement the idea.

More de-press-ed conference, coverage by Andy Oram

Andy Oram had some coverage of the Boston event for yesterday's censorware press conference (again, I spoke here). His article is:

Internet filtering hurts those who are least able to protest it

Great write-up. And I'm happy to be mentioned:

One of the best spokesmen concerning censorware is the one who knows the code: Seth Finkelstein, who won the 2001 EFF Pioneer Award for deciphering several filtering programs. Seth is a crackerjack programmer who ought to be earning six figures somewhere. But the modest publicity he got for the EFF Award did not translate into job prospects, and he can't publish much of his research because he'll be sued by censorware companies angry at having their operations revealed.

De-press-ed Conference

Almost nobody showed up to the Boston press conference.

That was disappointing.