Could you live without daily electronic conveniences — Twitter, Facebook, email, texting and more — for 90 days? Jake P. Reilly, a 24-year-old copywriting student at the Chicago Portfolio School, did just that.

My immediate reaction to the story was:  yes, I have done that project as well, although instead of (mis-) labeling it the “Amish Project” I called it “being in the 1980s and early 1990s.”  At that time I had no cell phone, no e-mail, and no social media.  May I say that, even with the downsides that all of those things can bring, that my life is a lot easier with those things than it was without them?  It is certainly easier to communicate with my family (both my wife and kids and my extended family) and, in general, I like my gadgets.

I take the point that one can get too immersed in these things (like checking texts or Facebook instead of talking to people in the room) but it seems that learning appropriate behavior is the best solution.

Plus, if one is going to engage in and “Amish” Project, there better be beards, buggies, and barn-raising, not just having to use a land line and paper notes.

One last thought:  while it is clearly rude to text at dinner or whatnot there is also a certain rudeness to quitting the basic communication methods of the present day.  Quitting Twitter and Facebook are one thing, but being unreachable by e-mail or phone (he didn’t, initially, even have a landline) is another.  There is part of this that strikes as being beyond interesting social experiment and verging into egotistical stunt.  I don’t, for example, know how one manages being in school these days without access to e-mail and the like.  His e-mail rules were a bit fuzzy, however, as there is a part of the story wherein he is checking it for banking purposes.

The whole episode, swiftly amplified worldwide through Twitter itself, offered a telling glimpse into what happens when a scrappy Internet start-up tries to become a multinational business.

“Thank you for the #censorship, #twitter, with love from the governments of #Syria, #Bahrain, #Iran, #Turkey, #China, #Saudi and friends,” wrote Björn Nilsson, a user in Sweden.

Bianca Jagger asked, almost existentially, “How are we going to boycott #TWITTER?”

Zeynep Tufekci, an assistant professor at the University of North Carolina at Chapel Hill, took the other side. “I’m defending Twitter’s policy because it is the one I hope others adopt: transparent, minimally compliant w/ law, user-empowering,” she wrote.

Twitter, like other Internet companies, has always had to remove content that is illegal in one country or another, whether it is a copyright violation, child pornography or something else. What is different about Twitter’s announcement is that it plans to redact messages only in those countries where they are illegal, and only if the authorities there make a valid request.

So if someone posts a message that insults the monarchy of Thailand, which is punishable by a jail term, it will be blocked and unavailable to Twitter users in that country, but still visible elsewhere. What is more, Twitter users in Thailand will be put on notice that something was removed: A gray box will show up in its place, with a clear note: “Tweet withheld,” it will read. “This tweet from @username has been withheld in: Thailand.”

Think of it as the digital equivalent of a newspaper responding to old-fashioned government censorship with a blank front page.

“We have always had the obligation to remove illegal content. This is a way to keep it up in places where we can,” said Alex Macgillivray, general counsel at Twitter. “We have been working on this awhile. We needed to figure out how to deal with this as a company.”

The majority of Twitter’s 100 million users are overseas and it has several offices abroad working to expand its business and drum up local advertising. Twitter’s president, Jack Dorsey, said this week that it would open an office in Germany, which prohibits Nazi material online and offline.

The announcement signals the choice that a service like Twitter has to make about its own existence: Should it be more of a free-speech tool that can be used in defiance of governments, as happened during the Arab Spring protests, or a commercial venture that necessarily must obey the laws of the lands where it seeks to attract customers and eventually make money?

Tim Wu, a professor at Columbia Law School and author of “The Master Switch,” said the changes could undermine the usefulness of Twitter in authoritarian countries.

“I don’t fault them for wanting to run a normal business,” he said. “It does suggest someone or something else needs to take Twitter’s place as a political tool.”

Professor Wu urged the company to use discretion: “Twitter needs to be careful not to be in a position where it’s no longer helpful to a rebellion against oppressive governments. It needs to remain its old self in some circumstances.”

Twitter’s policy of allowing its users to adopt pseudonyms made it particularly useful to many protest organizers in the Arab world, and its chief executive went so far as to call it “the free-speech wing of the free-speech party.”

But Professor Wu wondered aloud if the new policy would have allowed Egyptians to organize protests using the service.

Interestingly, this list of complaints to Twitter seems to indicate that most if not all of the Complaints that they’ve gotten regarding content have been regarding copyright violations, not complaints by foreign governments regarding violations of their law. Additionally, if people in a country like Egypt are using the Internet in the manner Wu describes, it’s more likely that the government in question will simply respond the way that Egypt did when it shut down access to the Internet, not to mention the ability to make international phone calls, during the height of the Tahrir Square protests. It seems unlikely that a country facing protests is going to take the time to make a complaint to a company in California.

Nonetheless, Twitter users in the United States and other countries where government are unlikely to ever take any punitive action against the service seem to have adopted this as their Outrage Of The Day. Many are apparently engaging in some kind of Twitter Blackout protest today, not using the service at all in response to a policy that will never really impact them. What that accomplishes, I’m not entirely sure. Yes, this policy does have the ring of some of the concessions that Google and other countries have made to nations like China in recent years. However, this isn’t quite so simple an issue and the Electronic Frontier Foundation’s Jillian York notes on her personal blog that everyone really just needs to calm down about this:

Let’s be clear: This is censorship. There’s no way around that. But alas, Twitter is not above the law.  Just about every company hosting user-generated content has, at one point or another, gotten an order or government request to take down content.  Google lays out its orders in its Transparency Report.  Other companies are less forthright.  In any case, Twitter has two options in the event of a request: Fail to comply, and risk being blocked by the government in question, or comply (read: censor).  And if they have “boots on the ground”, so to speak, in the country in question?  No choice.

(…)

I understand why people are angry, but this does not, in my view, represent a sea change in Twitter’s policies.  Twitter has previously taken down content-for DMCA requests, at least-and will no doubt continue to face requests in the future.  I believe that the company is doing its best in a tough situation…and I’ll be the first to raise hell if they screw up.

This strikes me as the most reasonable way of looking at things. If we lived in a world where every nation had as much respect for freedom of speech as the United States, this wouldn’t be a problem. We don’t, however, and the Internet is now a worldwide phenomenon. Something that’s perfectly legal in the United States could be a serious crime elsewhere. For example, it’s a crime in Thailand to insult the King. Just last month, an American of Thai decent was sentenced to 30 months in prison for insulting the King of Thailand in an Internet post he authored while living in the United States. If Twitter, or Facebook, is threatened with legal liability for allowing people in Thailand to view such material how are they supposed to respond? The same question applies if, say, neo-Nazi content is posted and the government of Germany, where such content is against the law, demands that it be taken down. What’s the proper response? These are companies with hundreds of employees and, in Facebook’s case in the very near future, soon to be thousands of shareholders. Endangering the corporation’s interests for the sake of principles simply isn’t realistic.

Zeynep Tufekci argues that the new policy is actually meant to protect freedom of speech:

In my opinion, with this policy, Twitter is fighting to protect free speech on Twitter as best it possibly can. (It also fits with its business model so I am not going to argue they are uniquely angelic, but Twitter does have a good track record. Twitter was the only company which first fought the US government to protect user information in the Wikileaks cas,e and then informed the users when it lost the fight. In fact, Twitter’s transparency is the only reason we even know of this; other companies, it appears, silently caved and complied.)

Twitter’s latest policy is purposefully designed to allow Twitter to exist as a platform as broadly as possible while making it as hard as possible for governments to censor content, either tweet by tweet or more, all the while giving free-speech advocates a lot of tools to fight censorship.

(…)

Twitter can’t fight all free speech battles by itself; and it can’t change laws or governments around the world, nor can it ignore issues of jurisdiction. In particular, if faced with a court order that requires Twitter to identify dissidents in a country where torture or severe repression is in place, I hope Twitter first makes this as public as possible, and then choses to pull out of that country rather than comply (as Yahoo did in the shameful case of Wang Xiaoning and others in China – and some these people remain in prison after almost a decade).

There is a lot more to be said about the dangers of centralization, the emergence of corporate platforms as larger and larger portions of our political and social commons, and the conflicts between control, profit motives, and free and civic speech these recent developments raise. I don’t want to sound like I am happy to trust a few corporations and that’s it. On the contrary, I’ve repeatedly tried to warn against these dangers. All that said, I don’t think it is helpful if we don’t recognize a good policy when we see one.

Those last points are the most important, perhaps. Businesses in the United States cannot be held responsible for the laws of China, or Thailand, or any other nation, and they have to do the best they can to exist in the world as it exists, not the world as we’d like it to be.

There’s another point, of course. All of these companies are private entities and none of us are compelled to use their services. If you don’t like the policies that they’ve adopted, you can take your business elsewhere. In the end, this isn’t censorship, it’s a perfectly valid business decision.

If you thought that Newt Gingrich’s idea for a Moon Base that eventually becomes an American state was a bit wacky, back in the 90s the former Speaker was talking about resurrecting the dinosaurs:

The former House speaker has long been known for his boyish enthusiasm for subjects like dinosaurs, zoos and outer space. And in his 1996 book “To Renew America” he even devoted a short chapter to proposals that are, in some cases, directly inspired by popular science fiction.

“Why not aspire to build a real Jurassic Park?” Gingrich asked on page 190 of the book, adding in parenthesis that such an achievement “may not be at all impossible.”

“Wouldn’t that be one of the spectacular accomplishments of human history?” he continued. “What if we could bring back extinct species?”

In fact, Gingrich argued in the book that we have quite a lot to learn from the works of authors like Arthur C. Clarke and Jules Verne, and despaired those contemporary storytellers like Michael Crichton didn’t have the imaginations necessary to inspire Americans.

“Somehow we must reintegrate the scientific with the popular and reconnect the future to the present,” he wrote. “This is less a job for scientists, engineers, bureaucrats, and administrators and more a job for novelists, moviemakers, popularizers, and politicians.”

Gingrich says that as a boy he was taught by science fiction to believe there was “a whole universe waiting to be learned and explored” and that, having grown older, he still believes “this positive vision of my childhood was the right one.”

Apparently, part of that positive vision included the idea of honeymoons in space:

We could also have sex in space.

“I believe that space tourism will be a common fact of life during the adulthood of children born this year, that honeymoons in space will be the vogue by 2020,” Gingrich wrote toward the end of the chapter. “Imagine weightlessness and its effects and you will understand some of the attractions.”

This was in 1996, and Gingrich dedicated the book to “Marianne, who made it all worthwhile.” One imagines, though, that at the time his thoughts about zero-gravity honeymoons more likely involved a young House Committee Aide name Callista Bisek.

Now there’s nothing wrong with being inspired by science fiction. I’ve been a fan of the genre myself since at least middle school. But inspiration and rational public policy aren’t always the same thing, and when it’s all combined in the mind of a guy like Gingrich who seems to know a very little about a very lot but doesn’t know what he doesn’t know, it leads to ridiculous flights of fancy.

Besides, I think Dr. Ian Malcom pretty much established the wisdom (or lack thereof to be more precise) of Newt’s fascination with resurrecting the dinosaurs:

Let’s say you’re running for President of the United States at a time when the economy is weak, the Federal Budget is a mess, and our infrastructure is badly in need of repair. Let’s also say your running in a party that believes in small government and getting the budget deficits under control. What do you do. Why, of course, you propose a massive Federal program to build permanent bases on the Moon by 2020:

COCOA, Fla.–Appealing to residents of the state’s economically struggling “Space Coast,” Republican presidential candidate Newt Gingrich promised to have a permanent U.S. base on the moon by the end of his second term as president.

To cheers and applause in an area that has suffered major job losses since the cancellation of the space shuttle, Gingrich said, “By the end of my second term, we will have the first permanent base on the moon and it will be American.

“We will have commercial near-Earth activities that include science, tourism, and manufacturing, and are designed to create a robust industry precisely on the model of the development of the airlines of the 1930s, because it is in our interest to acquire so much experience in space that we clearly have a capacity that the Chinese and the Russians will never come anywhere close to matching.”

He also said that by the end of 2020, the country would have “the first continuous propulsion system in space” capable of allowing people travel to Mars. “I am sick of being told we have to be timid, and I am sick of being told we have to be limited in technologies that are 50 years old,” the former House speaker told the crowd at a “space roundtable” he hosted at a Holiday Inn.

Responding to rival Mitt Romney’s criticism of his proposal for a lunar settlement, Gingrich said, “When we have 13,000 Americans living on the moon, they can petition to become a state. And here’s the difference between romantics and so-called practical people. I wanted every young American to say to themselves, ‘I could be one of those 13,000. I could be a pioneer. I need to study science and math and engineering. I need to learn how to be a technician. I can be a part of building a bigger, better future.’ “

As to that last point about statehood for the Moon (or would that be planetoid-hood?), Gingrich may not be aware that the United States has been a signatory to the Outer Space Treaty since 1967 under which the Moon and other outer space “property” is defined as a “common heritage for all mankind,” barring any single nation from claiming dominion over it. But there’s so much more to it than that. This is Newt Gingrich after all, the guy who once talked about the physical benefits of honeymoon’s in zero gravity and talked about space as a tourist destination. It all seems very wacky and, in a nation where Congress spends months in tight battles over how to cut the budget to pay for some new program, pretty much an impossibility under current conditions.

But that doesn’t matter to Gingrich, who has his feet firmly planted in the ground of “national greatness” (i.e., big government) conservatism, where the idea of massive national projects like a manned space program, or failing that a war, is the necessary for America to achieve its destiny. Gabriel Malor puts it best with regard to that part of Gingrich’s philosophy:

The idea that we must have some culturally significant and symbolic government project to spur the next generation to new heights of blah blah blah is utter crap. The moon race and the space agency incidentally aided other industries. And it eventually gave us Tang and that weird freeze-dried astronaut icecream stuff. Which is very cool and all, but I suggest to you that neither represents a GREAT WORK in the history of mankind that we would be worse off for not having.

(…)

We’ve been to the Moon. There’s nothing there. There was nothing there then and there’s still nothing there except the garbage we left behind the first times we were there.

We’ve scoped and prodded and had our little mouse droids running all over Mars. There’s nothing there either. Nothing that would justify spending taxpayer money, anyway, chasing a dream so that Newt Gingrich can call himself “visionary.”

That doesn’t mean it doesn’t make for good politics, though:

Communities along Florida’s Space Coast, built on the optimism and industry of the space program, are in economic peril. The area’s 12 percent unemployment rate—2½ points higher than the national average—is expected to rise to 15 percent over the next year, mostly as a result of the space industry contraction. Meanwhile, as America dithers, Russia, China, India, and other countries are expanding their shares of the space market.

So perhaps it’s no surprise that Newt is bringing this up in Florida. That doesn’t mean it isn’t an incredibly silly and impractical idea, of course, but at least we know he’s a panderer and not some guy who thinks Luna is going to be the 51st state.

Earlier this month, I noted a criminal case pending in Federal Court in Denver that raised the question of whether or not a criminal suspect could be compelled to reveal the password to decrypt his computer’s hard drive to law enforcement, or whether such information would be covered by the 5th Amendment’s right against self-incrimination. On Monday, and after three separate hearings on the issue of whether or not the Fifth Amendment would allow the Defendant to remain silent, the Judge president over the case ordered that the password must be produced:

A judge on Monday ordered a Colorado woman to decrypt her laptop computer so prosecutors can use the files against her in a criminal case.

The defendant, accused of bank fraud, had unsuccessfully argued that being forced to do so violates the Fifth Amendment’s protection against compelled self-incrimination.

“I conclude that the Fifth Amendment is not implicated by requiring production of the unencrypted contents of the Toshiba Satellite M305 laptop computer,” Colorado U.S. District Judge Robert Blackburn ruled Monday. (.pdf)

The authorities seized the laptop from defendant Ramona Fricosu in 2010 with a court warrant while investigating financial fraud.

The case is being closely watched (.pdf) by civil rights groups, as the issue has never been squarely weighed in on by the Supreme Court.

Full disk encryption is an option built into the latest flavors of Windows, Mac OS and Linux, and well-designed encryption protocols used with a long passphrase can take decades to break, even with massive computing power.

The government had argued that there was no Fifth Amendment breach, and that it might “require significant resources and may harm the subject computer” if the authorities tried to crack the encryption.

Assistant U.S. Attorney Patricia Davies said in a court filing (.pdf) that if Judge Blackburn did not rule against the woman, that would amount to “a concession to her and potential criminals (be it in child exploitation, national security, terrorism, financial crimes or drug trafficking cases) that encrypting all inculpatory digital evidence will serve to defeat the efforts of law enforcement officers to obtain such evidence through judicially authorized search warrants, and thus make their prosecution impossible.”

The relevant section of Judge Blackburn’s opinion is clearly a win for the government, at least in this case:

The small universe of decisions dealing with the Fifth Amendment issues implicated by compelling a witness or defendant to provide a password to an encrypted computer or otherwise permit access to its unencrypted contents are instructive here. In In re Grand Jury Subpoena to Boucher, 2007 WL 4246473 (D. Vt. Nov. 29, 2007) (Boucher I), a laptop computer was found in the defendant’s car during a search incident to his crossing the border from Canada into the United States. During the initial search, an officer opened the computer and without entering a password was able to view its files, revealing thousands of images of what appeared to be, based on the names of the files, adult and some child pornography. An agent of the Bureau of Immigration and Customs Enforcement (“ICE”) was called in, who asked the defendant to show him where these images were located on the computer.6 The defendant naigated to a drive “Z,” which contained several images of child pornography. After the defendant was arrested and the laptop seized, the computer was found to be password protected.

When agents were unable to decrypt the computer, the grand jury issued a subpoena demanding the defendant produce any documents reflecting any passwords associated with the computer. Boucher I, 2007 WL 4246473 at *1-2. Noting that under prevailing Supreme Court precedent, a defendant cannot be compelled to reveal the contents of his mind, the magistrate judge found that the act of producing the password was testimonial and, therefore, privileged. Id. at *4-*6. Accord United States v. Kirschner, 2010 WL 1257355 at *3-4 (E.D. Mich. March 30, 2010). On appeal of that decision, the grand jury revised its request to require the defendant to produce, not the password itself, but rather an unencrypted version of the Z drive. In re Grand Jury Subpoena to Boucher, 2009 WL 424718 at *2 (D. Vt. Feb. 19, 2009) (Boucher II). Because of the revision to the request, the district court denied the motion to quash. The court noted that “[w]here the existence and location of the documents are known to the government, no constitutional rights are touched, because these matters are a foregone conclusion,” that is, they “add[] little or nothing to the sum total of the Government’s information.” Id. at *3 & *4 (quoting Fisher, 96 S.Ct. at 1581) (internal quotation marks omitted). Likewise, the defendant’s production was not necessary to authenticate the drive because he had already admitted possession of the computer, and the government had agreed not to use his act of production as evidence of authentication. Id. at *4. Accord United States v. Gavegnano, 2009 WL 106370 at *1 (4th Cir. Jan. 16, 2009) (where government independently proved that defendant wassole user and possessor of computer, defendant’s revelation of password not su bject to suppression).

There is little question here but that the government knows of the existence and location of the computer’s files. The fact that it does not know the specific content of any specific documents is not a barrier to production. See Boucher II, 2009 WL 424718 at *3 (citing In re Grand Jury Subpoena Duces Tecum Dated Oct. 29, 1992)(United States v. Doe), 1 F.3d 87, 93 (2nd Cir. 1993), cert. denied, 114 S.Ct. 920 (1994)).

Additionally, I find and conclude that the government has met its burden to show by a preponderance of the evidence that the Toshiba Satellite M305 laptop computer belongs to Ms. Fricosu, or, in the alternative, that she was its sole or primary user, who, in any event, can access the encrypted contents of that laptop computer. The uncontroverted evidence demonstrates that Ms. Fricosu acknowledged to Whatcott during their recorded phone conversation that she owned or had such a laptop computer, the contents of which were only accessible by entry of a password. Of the three laptop computers found and seized during the execution of the search warrant of Ms. Fricosu’s residence, only one was encrypted, the Toshiba Satellite M305. That laptop computer was found in Ms. Fricosu’s bedroom, and was identified as “RS.WORKGROUP.Ramona.” None of defendant’s countervailing arguments – the suggestions that the computer might have been moved during the search, that someone else may have randomly designated the computer account as “Ramona,” or that the fact that the hard drive was imaged before it was read somehow undermines its validity or authenticity7 – is sufficient to alter my conclusion that it is more likely than not that the computer belonged to and was used by Ms. Fricosu. Accordingly, I find and conclude that the Fifth Amendment is not implicated by requiring production of the unencrypted contents of the Toshiba Satellite M305 laptop computer.

As Orin Kerr notes, though, the Judge’s ruling only seems to apply when law enforcement can establish a clear nexus between the Defendant and the hard drive they want decrypted:

Based on a quick read of the opinion, the legal analysis in the Fricosu opinion is not a model of clarity. But it strikes me as a replay of the district court decision in Boucher: The Court ends up ordering the defendant to decrypt the hard drive, but only because the court made a factual finding that in this specific case, the government already knew the information that could be incriminating — and as a result, was a “foregone conclusion” that dissipated the Fifth Amendment privilege.

If I’m reading Fricosu correctly, the Court is not saying that there is no Fifth Amendment privilege against being forced to divulge a password. Rather, the Court is saying that the Fifth Amendment privilege can’t be asserted in a specific case where it is known based on the facts of the case that the computer belongs to the suspect and the suspect knows the password. Because the only incriminating message of being forced to decrypt the password — that the suspect has control over the computer — is already known, it is a “foregone conclusion” and the Fifth Amendment privilege cannot block the government’s application.

That’s still a significant victory for the government, of course, because it means that any time the facts of a case can establish that a computer belonged to the Defendant and wasn’t in the possession or control of any other person, then they could compel a Defendant to provide the password(s) necessary to allow them to access the data on the hard drive.

Of course, this is merely a District Court ruling and, as Bruce McQuain notes, other Courts have found differently in similar circumstances:

For instance:

[A] Vermont federal judge concluded that Sebastien Boucher, who a border guard claims had child porn on his Alienware laptop, did not have a Fifth Amendment right to keep the files encrypted. Boucher eventually complied and was convicted.

On the other hand:

In March 2010, a federal judge in Michigan ruled that Thomas Kirschner, facing charges of receiving child pornography, would not have to give up his password. That’s “protecting his invocation of his Fifth Amendment privilege against compelled self-incrimination,” the court ruled (PDF).

One hopes that this case will be appealed to the Court of Appeals, if only because this is an issue that is going to come up again and again in the future and some resolution would be helpful for all concerned.

Here’s the opinion:

United States v. Fricosu

In a unanimous ruling, although a divided opinion, the Supreme Court ruled today that police cannot place a GPS tracking device on a suspects vehicle without first obtaining a warrant:

WASHINGTON — The Supreme Court on Monday unanimously ruled that the police violated the Constitution when they placed a Global Positioning System tracking device on a suspect’s car and monitored its movements for 28 days.

But the justices divided 5-to-4 on the rationale for the decision, with the majority saying that the problem was the placement of the device on private property. That ruling avoided many difficult questions, including how to treat information gathered from devices installed by the manufacturer and how to treat information held by third parties like cellphone companies.

Walter Dellinger, a lawyer for the defendant in the case and a former acting United States solicitor general, said the decision “is a signal event in Fourth Amendment history.”

“Law enforcement is now on notice,” he said, “that almost any use of G.P.S. electronic surveillance of a citizen’s movement will be legally questionable unless a warrant is obtained in advance.”

Though the ruling was limited to physical intrusions, the opinions in the case collectively suggested that a majority of the justices are prepared to apply broad Fourth Amendment privacy principles unrelated to such intrusions to an array of modern technologies, including video surveillance in public places, automatic toll collection systems on highways, devices that allow motorists to signal for roadside assistance and records kept by online merchants.

The case decided Monday, United States v. Jones, No. 10-1259, concerned Antoine Jones, who was the owner of a Washington nightclub when the police came to suspect him of being part of a cocaine-selling operation. They placed a tracking device on his Jeep Grand Cherokee without a valid warrant, tracked his movements for a month and used the evidence they gathered to convict him of conspiring to sell cocaine. He was sentenced to life in prison.

The United States Court of Appeals for the District of Columbia Circuit overturned his conviction, saying the sheer amount of information that had been collected violated the Fourth Amendment, which bars unreasonable searches.

The Supreme Court affirmed that decision, but on a different ground. “We hold that the government’s installation of a G.P.S. device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search,’ ” Justice Antonin Scalia wrote for the majority. Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Sonia Sotomayor joined the majority opinion.

“It is important to be clear about what occurred in this case,” Justice Scalia went on. “The government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.”

In a concurrence for four justices, Justice Samuel A. Alito Jr. faulted the majority for trying to apply 18th-century legal concepts to 21st-century technologies. What should matter, he said, is the contemporary reasonable expectation of privacy.

“The use of longer term G.P.S. monitoring in investigations of most offenses,” he wrote, “impinges on expectations of privacy.” Justices Ruth Bader Ginsburg, Stephen G. Breyer and Elena Kagan joined the concurrence.

“We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the 4-week mark,” Justice Alito wrote. “Other cases may present more difficult questions.”

Lyle Denniston tries to make some sense of what the Court actually ruled today, because the existence of multiple concurrences with different legal theories makes the blanket statement that the Court found that the use of GPS tracking without a warrant is unconstitutional isn’t really correct:

Given the complexity of the voting pattern, and what the votes actually supported or failed to support, it nonetheless was clear that the Court was unanimous in one respect.  It upheld the result — but no more than the result — of a D.C. Circuit Court ruling that Jones’ Fourth Amendment rights had been violated.

Justice Department lawyers, trying to salvage their case in the Supreme Court, had argued that the electronic monitoring of Jones — even if it was a search — did not violate the Fourth Amendment because the search was based upon “reasonable suspicion, and indeed probable cause, to believe that [Jones] was a leader in a large-scale cocaine distribution conspiracy.”  Justice Scalia said the Court would not consider that argument, since it was not raised in the lower courts and the D.C. Circuit did not deal with it.  “We consider the argument forfeited,” Scalia wrote.  That meant, in practice, that Jones’ convicted was overturned, as the D.C. Circuit had ruled.

Because Scalia made mention of that alternative argument, however, it appeared likely that federal prosecutors will attempt to use it in other cases involving the use of the GPS, when the investigators had not obtained a warrant.   Some caution might be in order, though, because Justice Sotomayor’s vote was necessary to make even that part of the Scalia opinion a majority-supported result, and her separate opinion might be read to raise some doubt about her enthusiasm for that argument.

Sotomayor interpreted the Court’s ruling as a narrow one, saying that it was limited to a conclusion that “the government’s physical intrusion on Jones’ Jeep” was a search under the Fourth Amendment.  But she also noted that she agreed with the separate Alito opinion that the use of GPS technology over a prolonged period of monitoring will impinge — in at least some cases — on an individual’s constitutionally protected “expectation of privacy.”

(…)

Justice Alito’s concurring opinion, representing the views of himself and three other Justices, challenged the Scalia opinion as “unwise” for relying — in an originalist sense — about what constituted a “trespass” that invaded privacy at the time the Fourth Amendment was added to the Constitution in 1791 as part of the Bill of Rights.  The Founding generation, Alito wrote, could not have imagined GPS technology.  So, he argued, the ruling in this case should turn on the question of whether individuals have a “reasonable expectation of privacy” that could be compromised by the use of such devices.

There were two qualifications in the Alito opinion’s embrace of that approach.   Such privacy would be intruded upon, he wrote, if there were “longer term GPS monitoring,” and that would be true for “most offenses” that were under investigation.   Those two apparent limitations mean, in practice, that short-term GPS monitoring might not intrude on Fourth Amendment privacy, and police and federal agents’ investigation of some crimes with such a device might not, either.

The Court, in other words. did not go nearly as far as the three judge panel of the D.C. Circuit Court of Appeals from which this case had come, which held that the act of placing the GPS device on the Defendant’s care without a warrant was, in and of itself, unconstitutional, or the position that Judge Alex Kozinski took in a case that was before the 9th Circuit Court of Appeals several years ago. Most importantly, though, it’s worth noting that the Court did not hold today that a warrant is required to place a GPS tracking device on a Defendant’s vehicle. Instead what we seem to have gotten is a ruling that doing so constitutes is a “search” under the Fourth Amendment. Whether it’s a search that requires a warrant is a question that will have to be left for another case.

What this means, of course, is that it will take further cases to decide this issue completely, but it strikes me that Justice Alito is correct when he argues in his concurrence (joined by Justices Kennedy, Ginsburg, Breyer, and Kagan) that the Court erred significantly when it tried to turn this into an issue of trespass instead of looking to the Fourth Amendment itself:

In the pre-computer age, the greatest protections of privacy were neither constitutional nor statutory, but practical. Traditional surveillance for any extended period of time was difficult and costly and therefore rarely undertaken. The surveillance at issue in this case—constant monitoring of the location of a vehicle for four weeks—would have required a large team of agents, multiplevehicles, and perhaps aerial assistance.10 Only an investigation of unusual importance could have justified such an expenditure of law enforcement resources. Devices like the one used in the present case, however, make long-term monitoring relatively easy and cheap. In  circumstances involving dramatic technological change, the best solutionto privacy concerns may be legislative. See, e.g., Kerr, 102 Mich. L. Rev., at 805-806. A legislative body is well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way.

To date, however, Congress and most States have not enacted statutes regulating the use of GPS tracking technology for law enforcement purposes. The best that we can do in this case is to apply existing Fourth Amendment doctrine and to ask whether the use of GPS tracking in aparticular case involved a degree of intrusion that a reasonable person would not have anticipated.

Under this approach, relatively short-term monitoringof a person’s movements on public streets accords withexpectations of privacy that our society has recognizedas reasonable. See Knotts, 460 U. S., at 281-282. But the use of longer term GPS monitoring in investigations ofmost offenses impinges on expectations of privacy. For such offenses, society’s expectation has been that lawenforcement agents and others would not—and indeed, inthe main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period. In this case, for four weeks, law enforcement agents tracked every movement that respondent made in the vehicle he was driving. We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surelycrossed before the 4-week mark. Other cases may present more difficult questions. But where uncertainty exists with respect to whether a certain period of GPS surveillance is long enough to constitute a Fourth Amendmentsearch, the police may always seek a warrant

Alito raises a good point in bringing up the fact that there ought to be legislative action here, because there are plenty of situations where tracking like this can be accomplished without the police having to do what they did in this case. For example, should it be permissible for law enforcement to be able to access the GPS tracking data emitted by a suspect’s cell phone, or the GPS system in their car, or the monitor the signal emitted by their electronic toll device (i.e. EZ-Pass)? Under the majority analysis, none of these would constitute a “search” because none of them involve a trespass. However, could it not be said that we have a reasonable expectation of privacy in this kind of data, or that there ought to be a law forbidding that information from being shared with law enforcement without a Court order or a search warrant? As Alito said, we have reached the point where twenty-four hour monitoring is technologically possible, and it’s only become easier as technology advances. On some level, the Courts are not the best avenue to deal with these questions because they can only deal with matters on a case-by-case basis and each particular search is dependent on the facts of the particular case, as we learned today. If we don’t get a handle on this issue soon, we may find that it’s too late to control the information that we, knowingly and unknowingly, share with the government whether we like it or not.

Here’s the opinion:

United States v. Jones

 Not long ago, Apple boasted that its products were made in America. Today, few are. Almost all of the 70 million iPhones, 30 million iPads and 59 million other products Apple sold last year were manufactured overseas.

Why can’t that work come home? Mr. Obama asked.

Mr. Jobs’s reply was unambiguous. “Those jobs aren’t coming back,” he said, according to another dinner guest.

The president’s question touched upon a central conviction at Apple. It isn’t just that workers are cheaper abroad. Rather, Apple’s executives believe the vast scale of overseas factories as well as the flexibility, diligence and industrial skills of foreign workers have so outpaced their American counterparts that “Made in the U.S.A.” is no longer a viable option for most Apple products.

(…)

Apple executives say that going overseas, at this point, is their only option. One former executive described how the company relied upon a Chinese factory to revamp iPhone manufacturing just weeks before the device was due on shelves. Apple had redesigned the iPhone’s screen at the last minute, forcing an assembly line overhaul. New screens began arriving at the plant near midnight.

A foreman immediately roused 8,000 workers inside the company’s dormitories, according to the executive. Each employee was given a biscuit and a cup of tea, guided to a workstation and within half an hour started a 12-hour shift fitting glass screens into beveled frames. Within 96 hours, the plant was producing over 10,000 iPhones a day.

“The speed and flexibility is breathtaking,” the executive said. “There’s no American plant that can match that.”

Similar stories could be told about almost any electronics company — and outsourcing has also become common in hundreds of industries, including accounting, legal services, banking, auto manufacturing and pharmaceuticals.

The article goes on to explain how the advantage that Apple found in China wasn’t just cheap semi-skilled labor, but the economies of scale and speed with which requests could be complied with that really sealed the deal. The story about the iPhone’s screen tells the tale most effectively:

For years, cellphone makers had avoided using glass because it required precision in cutting and grinding that was extremely difficult to achieve. Apple had already selected an American company, Corning Inc., to manufacture large panes of strengthened glass. But figuring out how to cut those panes into millions of iPhone screens required finding an empty cutting plant, hundreds of pieces of glass to use in experiments and an army of midlevel engineers. It would cost a fortune simply to prepare.

Then a bid for the work arrived from a Chinese factory.

When an Apple team visited, the Chinese plant’s owners were already constructing a new wing. “This is in case you give us the contract,” the manager said, according to a former Apple executive. The Chinese government had agreed to underwrite costs for numerous industries, and those subsidies had trickled down to the glass-cutting factory. It had a warehouse filled with glass samples available to Apple, free of charge. The owners made engineers available at almost no cost. They had built on-site dormitories so employees would be available 24 hours a day.

The Chinese plant got the job.

“The entire supply chain is in China now,” said another former high-ranking Apple executive. “You need a thousand rubber gaskets? That’s the factory next door. You need a million screws? That factory is a block away. You need that screw made a little bit different? It will take three hours.”

(…)

Another critical advantage for Apple was that China provided engineers at a scale the United States could not match. Apple’s executives had estimated that about 8,700 industrial engineers were needed to oversee and guide the 200,000 assembly-line workers eventually involved in manufacturing iPhones. The company’s analysts had forecast it would take as long as nine months to find that many qualified engineers in the United States.

In China, it took 15 days.

Companies like Apple “say the challenge in setting up U.S. plants is finding a technical work force,” said Martin Schmidt, associate provost at the Massachusetts Institute of Technology. In particular, companies say they need engineers with more than high school, but not necessarily a bachelor’s degree. Americans at that skill level are hard to find, executives contend. “They’re good jobs, but the country doesn’t have enough to feed the demand,” Mr. Schmidt said.

The article is already the subject of much commentary on both the political side, as tracked by Memeorandum, and among technology writers tracked at Techmeme. Tyler Cowen suggests that it’s reason for us to spend less time worrying about the wage gap with China and other nations, and more time worrying about the economies of scale issues that the article raises.  Henry Blodget makes a starker point that makes one wonder exactly how the United States could ever get the “iPhone jobs” back:

 [Y]es, money is part of why all of our gadgets are built in China. But what started a couple of decades ago as a reach for efficiency has now resulted in the entire electronics-manufacturing ecosystem being lifted up and transferred to China.

Apple doesn’t build iPhones in the United States, in other words, because there is no longer an ecosystem here to support that manufacturing. There’s no supply chain, there aren’t enough super-low-cost workers, and there are not enough mid-level engineers.  And many Americans looking for work are still hoping for a return to jobs, salaries, and lifestyles that have simply disappeared.

This is a complex problem, and there’s no easy solution. But it’s a problem this country is going to have to fix. Or the massive middle class that once drove America’s prosperity will just cease to exist.

Of course, the problem with American politics is that easy solutions are all we ever hear from politicians because that’s all that voters want to hear. Any politician who dares to present ideas that cannot be summarized into nice easy sound bites usually ends up getting ignored, and all that putting out a detailed plan of any kind tends to accomplish is that it leaves the candidate in question open to more and more criticism. More importantly, though, the American people don’t want to hear things like Blodget says from their political leaders. Just ask John McCain when he bluntly stated during the Michigan Primary in 2008 that many of the manufacturing jobs that went overseas weren’t going to come back. He was right, but he was roundly denounced not only be Democrats by members of his own party. Pessimism, or to put it better honesty, doesn’t play well in politics. Americans want to hear that things are going to get better, quickly, that we will always be the leader of the world, and that we are the greatest nation ever to exist in the history of the world. Admitting that we’ve got a serious problem and that there’s pain to come in the future? Yea, try to make that sell in a race for the White House

Yves Smith doesn’t share in the praise for the article and notes that the authors missed a very important fact in their story about those iPhone glass screens:

So basically, the Chinese funded a completely non-economical glass R&D facility IN ANTICIPATION of getting the Apple order. There is no way anyone would build a factory like that unless the money was close to free. It already had glass samples in stock! The “some subsidies trickled down” sounds way too innocent. It sounds more like someone recognized the importance of Apple as a marquee customer, and whether the push came from the officialdom or businessmen with the right connections in high places, it doesn’t really matter. This project smells of having serious government backing. How can private businesses anywhere compete with that?

They can’t, of course, but I also don’t think that anyone is seriously suggesting that the United States can or should adopt anything resembling Chinese industrial policy. For one thing, it goes against the entire ethos of our economic and legal systems not to mention our culture. For another, it doesn’t strike me as an efficient use of resources. China has been pumping billions into projects like this, and many of them have laid dormant. That’s seems to me like the classic signs of a bubble, when and how it pops is another question. Smith also points out that Apple may not be the best example of  how and why an American manufacturer prefers to rely on overseas labor. Changing the screen design mere weeks before product roll out, be points out, is as much an example of Jobs’s erratic genius as anything else and isn’t necessarily a sign of good project management. The only reason it worked out well for Apple, it seems, is because the Chinese firm was able to push its workers to work longer hours than any American ever would. In other words, Chinese near-slave labor saved Steve Jobs’s ass.

Notwithstanding these valid criticisms, the article raises compelling points that should deeply concern all of us. As Blodget notes, it’s principally the lack of the infrastructure needed for the kind of manufacturing that Apple, or any cellphone or electronics manufacturer for that matter, would need that makes it unlikely that those kinds of jobs will return any time soon. Moreover, thanks to offshoring, advances in technology, and increases in worker productivity, there are entire classes of employment that either no longer exist anymore or don’t require nearly as many bodies as they used to. Many of these are the semi-skilled positions that were once a ticket to a middle class lifestyle. The same thing goes for the positions that used to be waiting for college graduates, and are now harder to come by. Where, exactly, are these jobs going to come from?

There is one factor the article cites that we could do something about. We don’t graduate nearly enough engineers in this country, partly because American college students seem inclined to pick “easy” majors rather than one of the STEM subject areas. We also don’t do much to encourage foreign students who come to the United States to study in these areas to stay here after they graduate. On that last point, many have suggested that we should offer H1-B visa’s to any foreign college student who agrees to stay and work in the United States after graduating. It’s a reasonable idea, as is any the encourages immigration by high-skilled workers and professionals, but right now immigration policy is ham-strung by a Republican Party unwilling to compromise at all until some ridiculous ideal of “border security” is achieved, even if its a policy that helps the economy. It’s a dumb position to take on many levels, and it’s hurting the economy.

Apple is now the leading corporation in America by any number of measures. However, even accounting for its overseas factories, it employees barely 1/10th of the number of employees that General Motors employed in the 1950s, and just a fraction of the number of employees that General Electric employed in the 1980s. Quite simply, they don’t need that many workers anymore. And yet,  the population of potential employees is far higher now than it was in the 50s or the 80s. Unless everyone is going to be a software designer, we’re going to have to find somewhere to employ all those people that provides more than just a minimal wage. During  his campaign for the Presidency, Jon Huntsman talked about a manufacturing renaissance that he believed was on the verge of occurring in America. One hopes he’s right about that because, otherwise, we’re going to have some big problems to deal with.

Update: Don Boudreaux shares a Letter To The Editor he sent to the Times in response to the article linked above:

As your reporters admit, Apple uses lots of overseas workers precisely because those workers are willing to work in worst conditions and for lower pay than are American workers – strong evidence that the options open to even low-skilled Americans are far superior to those of most workers in developing countries.  Our prosperity enables even the poorest of us to avoid such toil.

Of course, some people (apparently including, according to your report, Pres. Obama) wonder why Apple doesn’t simply hire American workers at American wages to do more of those jobs.  Alas, the unavoidable result of that policy would be a substantial rise in the price of Apple products and a fall – likely total – in the number of such products produced and sold.

Put differently, your report, like Mr. Obama, insinuates that low-wage jobs overseas (and jobs currently performed by machines) would, if transferred to America, somehow become the same – but higher paying – jobs for workers here.  This insinuation is wrong.   If Apple followed Mr. Obama’s suggestion, there would soon be no Apple and, hence, no “iPhone work” that the U.S. could possibly “lose out on.”

This is a fair point, although I would quibble with the assertion that there are so many options open to Americans right now. As anyone who’s been unemployed for more than a month or so can tell you, that’s not necessarily the case, and for large segments of the American workforce it does seem like the path to a middle class life that used to exist is disappearing. That’s not to say that Chinese wages and working conditions should be brought to the United States. That would be absurd, and I doubt most Americans would accept it. However,  it still leaves unanswered the question of where the jobs are going to come from in the future.

Within an hour last evening, I passed along two breaking news stories on Twitter. First, that former Florida governor Jeb Bush was set to endorse Mitt Romney ahead of that state’s suddenly very important primary. Second, that legendary but recently disgraced former Penn State football coach Joe Paterno had died. Within the next hour, I passed along news that both of those stories were premature.

While Twitter is at the low end of my diligence hierarchy–I’ll pass along (by re-tweeting) stories from trusted sources without verifying them, sometimes even without reading them–compared to blogging, much less more deliberately researched pieces written for publication elsewhere, that wasn’t my downfall in either case here. Both stories came from very solid support chains.

My re-tweet of the “Jeb Bush to endorse Romney” story re-tweets Stephen Hayes and Patrick Ruffini, well connected Republican analysts, and they were passing along a report from Josh Marshall’s well regarded Talking Points Memo which was passing along a CNN report.

I actually sent out three re-tweets in rapid succession on the Paterno story. First, Alabama sports journalist Izzy Gould‘s recollection that he’d covered Paterno’s last loss as a head coach, to the University of Alabama, last year. Then, NYT NFL writer Judy Battista‘s passing along of a CBS Sports report. Then, NFL business guru Andrew Brand‘s re-tweet of Onward State’s report “Our sources can now confirm: Joseph Vincent Paterno has passed away tonight at the age of 85.”

Both incidents demonstrate the nature of a Twitter stream: well-connected folks are connected to one another and things can go viral very quickly because of it. Bad reporting can spread in a matter of a few minutes. Thankfully, so can good reporting.

Poynter’s Jeff Sonderman examines “How false reports of Joe Paterno’s death were spread and debunked.” Essentially, Onward State, a Penn State student news website, broke the news at 8:45pm, noting that “Football players received an email minutes ago informing them of Paterno’s passing.” Local FM station Radio 94.5 apparently reported the story “around the same time.” This spurred CBS News and Huffington Post to rush to publish pre-prepared obituaries.

Those of us following people who follow these sources–which is to say, pretty much everyone likely to be on Twitter around 9 on a Saturday night–made the story go viral. But, Sonderman notes, “Minutes later though, other news organizations contradicted the reports, citing a family spokesperson. New York Times reporter Mark Viera appeared to be among the first.” Following that, “CBS Sports updated its obituary to include attribution to the Onward State report and a second paragraph noting contradictory claims. Other news organizations scrambled to react.” Soon, “Joe Paterno’s son, Jay, later tweeted his own report.” Finally, “Around 9:29, about 45 minutes after its first report, Onward State apologized to its Twitter followers.”

I never saw the Online State retraction but I did re-tweet several retractions, including the Jay Paterno tweet, in something close to real time. How quick did this all happen? Well, take a look at my tweets from last night:

Aside from the Ali G/Newt Gingrich tweet, seven successive tweets took me from the original Izzy Gould report to two others to Doug Mataconis’ OTB post passing along the news (which he unpublished in the space of maybe 5 minutes) to the “family spokesman” and Jay Paterno’s denials.

My last tweet on the subject for the night, “Rumors that Joe Paterno is set to endorse Mitt Romney are unconfirmed. Say again, unconfirmed,” may have been in questionable taste. But it reflects my bemusement over the whole thing.

Update (Doug Mataconis): As noted in the comments, Joe Paterno’s family reports that he passed way early this morning.

The blackout campaign by Internet content providers continues to have an impact on Capitol Hill:

Senate Majority Leader Harry Reid called off a vote on controversial anti-piracy legislation Friday — the surest sign yet that a wave of online protests have killed SOPA and PIPA for now and maybe forever.

Reid canceled the procedural vote on PIPA scheduled for Tuesday. Meanwhile, in the House, Judiciary Chairman Lamar Smith (R-Texas), announced plans Friday to put off any consideration of SOPA indefinitely.

“I have heard from the critics and I take seriously their concerns regarding proposed legislation to address the problem of online piracy,” Smith said in a statement Friday. “It is clear that we need to revisit the approach on how best to address the problem of foreign thieves that steal and sell American inventions and products.”

Silicon Valley interests and cyber activists rejoiced at the victory.

“Hallelujah!” tweeted Gary Shapiro, president and CEO of the Consumer Electronics Association.

“Dems, Sen. Reid has just saved u from a lot of embarrassment/loss of support,” tweeted Gigi Sohn, co-founder of Public Knowledge, which had helped organize protests.

In a statement, Reid said, “In light of recent events, I have decided to postpone Tuesday’s vote on the PROTECT IP Act.”

But the Nevada Democrat said talks would continue between the warring sides — Hollywood and content providers are on one side and Silicon Valley and the tech community on the other.

“We made good progress through the discussions we’ve held in recent days, and I am optimistic that we can reach a compromise in the coming weeks,” Reid said.

“There is no reason that the legitimate issues raised by many about this bill cannot be resolved,” he added. “Counterfeiting and piracy cost the American economy billions of dollars and thousands of jobs each year, with the movie industry alone supporting over 2.2 million jobs. We must take action to stop these illegal practices.”

This comes on top of yesterday’s news that Reid had told Senate Democrats that they were released from supporting the bill:

Senate Majority Leader Harry Reid won’t whip Democratic votes for an online anti-piracy bill, according to sources familiar with his plans.

The decision deals a severe blow to movie, music and television producers, who had hoped to withstand a surprisingly strong Silicon Valley surge against the bill. It also casts serious doubt over whether the bill authored by Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) will be able to net the 60 votes needed to reach cloture.

At the very least, this means that its back to the drawing board on both these bills. Given the amount of public opposition that they have created, though, it seems highly doubtful that they will be able to get anything passed before the November elections.

Today’s decision by Wikipedia and other websites to go dark or take other action in protest of two controversial anti-piracy bills now pending in Congress has led some Members of Congress who were supporting the measures to change their mind:

An Internet blackout Wednesday by Wikipedia, Reddit, Mozilla and thousands of other sites against two anti-piracy bills in Congress has started to have its desired effect: Co-sponsors of the legislation have changed sides and other lawmakers have called for more debate before any vote.

Sen. Marco Rubio (R-Fla.) — who was a co-sponsor of the PROTECT IP Act — became the latest lawmaker Wednesday to pull his support. In the House, Rep. Ben Quayle (R-Ariz.), originally a co-sponsor of the Stop Online Piracy Act, pulled his name from the list of sponsors on Tuesday. A spokesman for Rep. Lee Terry (R-Neb.), meanwhile, told the Omaha World-Herald on Wednesday that the congressman is also unable to support SOPA as written.

The widespread Internet protest is even bringing new Washington voices into the fray. Mostly silent in the debate, Sen. Jim DeMint (R-S.C.) tweeted Wednesday he doesn’t back the bills.

“I support intellectual property rights, but I oppose SOPA & PIPA,” DeMint tweeted. “They’re misguided bills that will cause more harm than good.”

At least one member of Congress will also join the blackout protest unfolding across the Web. Freshman Rep. Justin Amash (R-Mich.), who represents the libertarian wing of the GOP, changed his Facebook profile photo to a logo of the words SOPA and PIPA crossed out and he also disabled his Facebook wall so people cannot post content to it.

“These bills give the federal government unprecedented power to censor Internet content and will stifle the free flow of information and ideas,” Amash wrote in a post on his profile. “Demand that Congress and the president keep the Internet open and free.”

So it would appear that the protests, and the awareness that they are bringing to an issue that Americans who don’t follow these issues regularly, are causing some on Capitol Hill to back away from the bills, at least in their present form. There is already talk this afternoon that the Senate will follow the House and put off consideration of the bill until the defects that the technology community and others have pointed to can be addressed. In either case, it is quite obvious that the smooth sailing that many SOPA/PIPA supporters foresaw for the bills only months ago is not going to happen and that they are going to have to give up on some of their more controversial demands if the bill is going to pass.

Perhaps that’s why Chris Dodd, former Senator and current head of the Motion Picture Association of America, is so upset about today’s protests:

Hollywood’s chief lobbyist lashed out at tech companies for mounting Tuesday night’s planned online blackout to protest proposed anti-piracy legislation that has pitted Southern California movie and music distributors against Silicon Valley Internet corporations.

Motion Picture Assn. of America Chief Executive Chris Dodd, the former Senator from Connecticut, accused technology companies such as Google, Mozilla and Wikipedia of resorting to stunts.

As part of the largest online strike in history, thousands of websites planned to black out their pages or shut down completely starting Tuesday night to protest anti-piracy bills they feel would limit freedom of speech and saddle legitimate websites with onerous legal costs.

But Dodd called the blackout a “dangerous gimmick.”

“It is an irresponsible response and a disservice to people who rely on them for information and who use their services,” Dodd said in a statement. “It is also an abuse of power given the freedoms these companies enjoy in the marketplace today.”

The only thing I can conclude from this is that the people who pay Dodd’s salary — the big Hollywood studios principally — are upset by the fact that their effort to ram this flawed bill through Congress has apparently been thwarted by the fact that people are learning about what’s in it thanks to the very Internet they seem to view as an enemy rather than a potential marketplace. Well guys, that’s how the democratic process works.

As I said yesterday, there is a legitimate purpose behind these bills but the form that they are presently in is simply unacceptable. Now that the light of day has been shed upon what Congress was trying to do here perhaps we can all have a real discussion about the importance of protecting both intellectual property rights and the freedom of communication on the Internat and protection of fair use rights.

The Obama Administration is rejecting the proposed route of a pipeline that would bring oil from Canada’s oil shale region to refineries and ports in the Southern United States:

WASHINGTON — The State Department was expected to announce later Wednesday that it cannot recommend going forward with the proposed Keystone XL oil pipeline within the 60-day deadline set by Congress, putting the politically charged project on hold indefinitely, administration officials said.

The administration has until Feb. 21 to decide the fate of the 1,700-mile pipeline to carry heavy crude oil from formations in Alberta, Canada, to refineries on the Gulf Coast. Officials are expected to announce that they cannot meet that deadline and that they are looking for ways to complete a thorough environmental review before making a final decision on the project.

The action for now means the permit for the pipeline is rejected although the pipeline company will be allowed to submit a new proposal with an altered route. The Obama administration had sought a year’s delay to find a new route for the pipeline. But Republicans in Congress demanded that the administration accelerate the schedule and make a decision by mid-February, and included that provision in the payroll tax bill passed last month.

The State Department is expected to say that routing, environmental and safety concerns raised by the project are too complex to be decided on that abbreviated timetable and is recommending that President Obama reject it for the time being.

The pipeline has become a political flashpoint, with proponents saying it will create thousands of jobs and help wean the nation off of Middle Eastern oil, while opponents charge that it furthers dependence on dirty fuels and threatens sensitive lands and water supplies in the Great Plains.

The White House spokesman, Jay Carney, at a briefing with reporters Wednesday before the State Department released its announcement, was sharply critical of the Republican-sponsored legislation that he said had forced a decision before the project could be fully studied.

“In a purely partisan effort to score a political points, Republicans in Congress insisted on inserting an extraneous provision in a bill that had nothing to do with pipelines,” he said. “The State Department has made it clear that setting an arbitrary deadline through this purely political effort would put State Department in a corner and severely hamper their ability to review an alternate route, a new pipeline route, in a proper way.”

Not surprisingly, Republicans are denouncing the move and vowing to continue putting pressure on the Administration to approve the project:

A spokesman for Speaker John A. Boehner’ put out a response, based on news reports of the State Department’s recommendation, reminding everyone that the language in the payroll tax bill stipulates that only the president has authority to block the permit — not the State Department.

“President Obama is about to destroy tens of thousands of American jobs and sell American energy security to the Chinese,” said Brendan Buck, Mr. Boehner’s spokesman. “The president won’t stand up to his political base even to create American jobs. This is not the end of this fight.”

The Republican presidential candidates have all endorsed the pipeline, saying it will create jobs, and have used it as a cudgel to criticize Mr. Obama. They say that his reluctance to quickly approve the project is harming the economy and forcing Canada to seek other markets for its oil.

“As to the pipeline,” former Gov. Mitt Romney of Massachusetts said at a recent campaign appearance in South Carolina, “how in the world can anyone justify saying to Canada: ‘We don’t want that pipeline coming here. We know it’s important for you to be able to make progress and provide for your own finances. We know that if we stall long enough, you’ll not have the opportunity to bring a pipeline to America. Instead you’ll build a pipeline for China.’ “

I noted back in December that the House Republicans may have made a big mistake in insisting that the temporary extension of the Payroll Tax cut include a provision requiring the Administration to make a decision on the pipeline now rather than waiting until 2013 as had been the plan. State Department officials said at the time that the deadline set by Congress did not provide sufficient time for the studies that are required by law to be completed before a decision can be made. Accordingly, the deadline may have inadvertently created the situation where the Administration had no choice but to veto the proposed route, which pipeline advocates have said they would be willing to reconsider given the objections that have been noted in states along the route even by politicians who favor the pipeline.

Moreover, one pipeline advocate warned that by appearing to back the President into a corner, the House Republicans were basically daring the President to reject the plan:

Some political observers said the effort by Congress to pressure the president into making a quick decision might have backfired. Last week, John Engler, a former Michigan governor who is now head of the Business Roundtable, said “no chief executive likes to be painted into a corner by anybody, whether another nation or a legislative body. There are a couple of ways to react, and one of them is a negative way.” Engler and the Business Roundtable support the pipeline project.

In the press release announcing the decision just this afternoon, the State Department cites a number of factors for the rejection, but states that a revised route could be considered in the future:

Ironically, this announcement comes on the same day that the President’s own jobs council made some interesting recommendations:

President Obama’s jobs council called Tuesday for an “all-in approach” to energy policy that includes expanded oil-and-gas drilling as well as expediting energy projects like pipelines.

“[W]e should allow more access to oil, natural gas and coal opportunities on federal lands,” states the year-end report released Tuesday by the President’s Council on Jobs and Competitiveness.

The report does not specifically mention the Keystone XL oil pipeline, but it endorses moving forward quickly with projects that “deliver electricity and fuel,” including pipelines.

“The Council recognizes the important safety and environmental concerns surrounding these types of projects, but now more than ever, the jobs and economic and energy security benefits of these energy projects require us to tackle the issues head-on and to expeditiously, though cautiously, move forward on projects that can support hundreds of thousands of jobs,” the report says.

The report retreats slightly from an interim report released in October that addressed the Keystone XL pipeline directly. The interim report appeared to offer cautious support for Keystone, calling on officials to “balance” environmental protections while realizing what it called the benefits of the pipeline.

But Keystone supporters will point out that the year-end report released Tuesday argues that energy projects like pipelines will result in economic and security benefits. It even echoes a common refrain from Republicans and the oil industry: that such energy projects “can support hundreds of thousands of jobs.”

This decision is not the end of the matter by any means. You can expect the House Republicans to try to make this an issue again in the upcoming negotiations over the permanent extension of the Payroll Tax cut as well as by other means. The Republican candidates for President will, no doubt, be united in their opposition to the President’s decision, and this is going to be an issue in the upcoming Presidential race. In reality, nearly all of the concerns that the State Department and pipeline opponents have voiced to this project can be easily addressed, including the question of whether the route of the pipeline itself poses a threat to underground aquifers. There’s no rational reason not to approve it, and I’ve to think that the Canadians are looking at this and just shaking their head in confusion over how stupid we Americans could possibly be to allow something so simple to get caught up in the idiotic world of partisan politics.

My prediction? Regardless of who is elected President in November, this project will be approved sooner rather than later.

The wave of online protests against two Congressional bills that aim to curtail copyright violations on the Internet is gathering momentum.

Wikipedia is the latest Web site to decide to shut on Wednesday in protest against the two Congressional bills, the Stop Online Piracy Act, often called SOPA, and the Protect IP Act, which is often called PIPA. The bills have attracted fierce opposition from many corners of the technology industry. Opponents say several of the provisions in the legislation, including those that may force search engines and Internet service providers to block access to Web sites that offer or link to copyrighted material, would stifle innovation, enable censorship and tamper with the livelihood of businesses on the Internet.

Nearly 800 members of Wikipedia have been debating and voting  whether the English-version of the site should participate in a blackout since December.

Jimmy Wales, co-founder of Wikipedia, confirmed the site’s decision on Monday on Twitter, writing: “Student warning! Do your homework early. Wikipedia protesting bad law on Wednesday!”

In a phone interview late Monday, Mr. Wales said that the Wikipedia community hoped to send a clear message to lawmakers and regulators in Washington that people who worked on the Internet and used it daily were not happy about the potential effects of the bills.

“What will make a difference is for ordinary people to pick up the phone and send an e-mail or a letter to their representatives about this,” he said. “When you consider the magnitude of how many people use Wikipedia globally, there is a potential here for really creating some noise and getting some attention in the U.S.”

Mr. Wales said that if passed, the bills could censor what information and links that sites like Wikipedia would be permitted to publish.

“The government could tell us that we could write an entry about the history of the Pirate Bay but not allow us to link to it,” he said, referring to the popular file-sharing site. “That’s a First Amendment issue.”

There’s been much discussion over the past month or so about SOPA, which is designated as H.R. 3261, and its Senate companion bill called The PROTECT IP Act (Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011) designated as S. 968. It’s also been an issue that has united the tech community, the online community, civil libertarians on the left, and libertarian-leaning conservatives on the right. On Capitol Hill, meanwhile, the bills, and their content, are the subject of a battle between lobbyists for Hollywood and the entertainment industry (which supports the bill) and the technology industry (which is pretty much united in opposition). The bill is also being supported by the pharmaceutical industry because it contains provisions that would allow rights holders and the government to take action against websites offering counterfeit drugs for sale online.

Hollywood’s arguments in favor of the bill should be fairly obvious:

According to Rep. Goodlatte, “Intellectual property is one of America’s chief job creators and competitive advantages in the global marketplace, yet American inventors, authors, and entrepreneurs have been forced to stand by and watch as their works are stolen by foreign infringers beyond the reach of current U.S. laws. This legislation will update the laws to ensure that the economic incentives our Framers enshrined in the Constitution over 220 years ago—to encourage new writings, research, products and services— remain effective in the 21st century’s global marketplace, which will create more American jobs.”^[14]

Rights-holders see intermediaries—the companies who host, link to, and provide e-commerce around the content—as the only accessible defendants.^[15]

Sponsor Rep. John Conyers (D-MI) said, “Millions of American jobs hang in the balance, and our efforts to protect America’s intellectual property are critical to our economy’s long-term success.”^[14] Smith added, “The Stop Online Piracy Act helps stop the flow of revenue to rogue websites and ensures that the profits from American innovations go to American innovators.”^[14]

The Motion Picture Association of America (MPAA) representative who testified before the committee said that the motion picture and film industry supported two million jobs and 95,000 small businesses.^[16]

As an intermediate matter, the goals of SOPA and its companion bill are hard to argue against. Online piracy is clearly a form of theft, and it causes the entertainment industry and rights holders to lose millions of dollars per year. Additionally, there’s been some evidence that piracy of intellectual property has become a huge source of revenue for overseas organized crime. Given the ease with which pirated copies of digital media can be transmitted around the world instantaneously, consideration should be given to making sure that the rights of content owners can be protected adequately. Additionally, the fact of piracy arguably hinders innovation in the digital distribution of entertainment because it makes content owners much more wary about wading into a world where their content could be stolen and for sale on the streets of Hong Kong within a week. The movie industry saw how the music industry failed to adequately react to the rise of Napster nearly 15 years ago, and they clearly don’t want to make the same mistake.

Despite the arguably legitimate goals behind the legislation, though, critics have pointed out that both SOPA and PROTECT IP give far too much power to rights holders, and far too little protection to innocent content providers. Bill Reader has an excellent overview of the problems with both pieces of legislation at PJ Media that I recommend to your attention. In short, both bills give either the Federal Government or content owners, or both, extensive powers to force website owners to remove content or sever links with other sites based on the mere allegation that there has been copyright infringement. The bill also purports to give content owners and the government significant powers over foreign websites, including the potential power to force ISPs to block sites deemed to be a source of piracy, a topic which Reader discusses in his article:

I find it hard to disagree with those arguing that both bills could be exploited to censor foreign internet sites. Censoring of foreign sites being one of the signature policies of China, I think that the largely bipartisan backlash I’ve seen is fully justified. I also think that some aspects of the bill, such as the “punishment first, appeal second” approach, which is very much in the spirit of “guilty until proven innocent,” resonate as wrong with a wide band of Americans on both sides of the aisle.

So, while I didn’t see some of the specific loopholes I’ve heard mentioned, the takeaway is that there are definitely plenty of ways both bills could be exploited in the name of censorship, both foreign and domestic. And there are enough loopholes that no simple editing session is going to fix these bills.

The Electronic Frontier Foundation has also done extensive work related to SOPA and PROTECT IP, noting most recently that even with recent changes to the legislation, there are still significant problems with the bill.

Legislatively, SOPA seems stalled at the moment. Late last week, House Oversight Committee Chairman Darrell Issa announced that it had been decided that there would be no action taken on the bill pending further review:

U.S. House Judiciary Committee Member Congressman Darrell Issa (R-CA), and Stop Online Piracy Act (SOPA) opponent has announced that House Majority Leader Eric Cantor has promised him that he will not bring the bill to the floor. That mean, for all practical intents and purposes, that SOPA is dead.

In a press release, Issa announced that he was canceling his Wednesday hearing on “the impact of Domain Name Service (DNS) and search engine blocking on the Internet, has been postponed following assurances that anti-piracy legislation will not move to the House floor this Congress without a consensus.”

Issa said, “Majority Leader Cantor has assured me that we will continue to work to address outstanding concerns and work to build consensus prior to any anti-piracy legislation coming before the House for a vote.” Without the Majority Leader’s support, SOPA won’t get to the House’s floor, it will not be voted on, and this makes it essentially dead.

This announcement came after public pressure against the bill had started to mount, but seemed to come to a head when the White House announced that it could not support the bill as written:

While we believe that online piracy by foreign websites is a serious problem that requires a serious legislative response, we will not support legislation that reduces freedom of expression, increases cybersecurity risk, or undermines the dynamic, innovative global Internet.

Any effort to combat online piracy must guard against the risk of online censorship of lawful activity and must not inhibit innovation by our dynamic businesses large and small. Across the globe, the openness of the Internet is increasingly central to innovation in business, government, and society and it must be protected. To minimize this risk, new legislation must be narrowly targeted only at sites beyond the reach of current U.S. law, cover activity clearly prohibited under existing U.S. laws, and be effectively tailored, with strong due process and focused on criminal activity. Any provision covering Internet intermediaries such as online advertising networks, payment processors, or search engines must be transparent and designed to prevent overly broad private rights of action that could encourage unjustified litigation that could discourage startup businesses and innovative firms from growing.

We must avoid creating new cybersecurity risks or disrupting the underlying architecture of the Internet. Proposed laws must not tamper with the technical architecture of the Internet through manipulation of the Domain Name System (DNS), a foundation of Internet security. Our analysis of the DNS filtering provisions in some proposed legislation suggests that they pose a real risk to cybersecurity and yet leave contraband goods and services accessible online. We must avoid legislation that drives users to dangerous, unreliable DNS servers and puts next-generation security policies, such as the deployment of DNSSEC, at risk.

Let us be clear—online piracy is a real problem that harms the American economy, threatens jobs for significant numbers of middle class workers and hurts some of our nation’s most creative and innovative companies and entrepreneurs.  It harms everyone from struggling artists to production crews, and from startup social media companies to large movie studios. While we are strongly committed to the vigorous enforcement of intellectual property rights, existing tools are not strong enough to root out the worst online pirates beyond our borders. That is why the Administration calls on all sides to work together to pass sound legislation this year that provides prosecutors and rights holders new legal tools to combat online piracy originating beyond U.S. borders while staying true to the principles outlined above in this response.  We should never let criminals hide behind a hollow embrace of legitimate American values.

Despite this, the Senate is still scheduled to take up The PROTECT IP Act beginning on January 24th. Which is why the blackout is going forward tomorrow not only on Wikipedia, but also sites such as Reddit, Boing Boing, although it does not appear that Twitter, Facebook, or Google will be joining in the blackout. I’m not sure if the blackout itself is even a good idea, for the most part it seems more likely to annoy people than spur action (and imagine the inconvenience if Google were to shut down for a day). However, these are two very bad bills that need to be stopped and if this is how they end up accomplishing it then I suppose it will have done some good.

Update: Twitter has announced they will not be joining the blackout, however the action Google is taking is likely to put this issue in front of more eyeballs than anything else:

Google said Tuesday that it will post a statement on its Web site voicing its opposition to the Stop Online Piracy Act, joining a drive that will see Reddit, Wikipedia, and Boing Boing take their Web sites dark for a period of time on Jan. 18. Google’s actions will not be as dramatic as others — Reddit and Boing Boing will take their sites down for 12 hours starting at 8 a.m., while Wikipedia will black out its English content for 24 hours on Wednesday — but the company’s decision to use its U.S. home page means that its arguments regarding SOPA will reach a huge audience.

In a statement, Google’s news team said, “Like many businesses, entrepreneurs and web users, we oppose these bills because there are smart, targeted ways to shut down foreign rogue websites without asking American companies to censor the Internet. So tomorrow we will be joining many other tech companies to highlight this issue on our US home page.”

Usually legislation like this goes all the way through Congress without the public being all that aware of it. That’s not happening this time.

[E]very post and comment — both public and private — by a U.S. user that mentions a presidential candidate’s name will be fed through a sentiment analysis tool that spits out anonymized measures of the general U.S. Facebook population.

No, your private comments won’t be republished and, yes, it appears that the process will strip your identifying information from your content. But it’s another reminder that nothing you put on Facebook is truly private.

Via Ann Althouse, where it took all of six minutes for a commenter to suggest “put[ting] a candidate’s name in every message and status update.”

It appears that members of both the House and Senate are starting to feel some serious pressure on this issue.

For a SOPA FAQ, see Reddit (h/t: mistermix).

And amusingly, the main author of SOPA, Lamar Smith (R-TX) was caught violating copyrights on his congressional web site:  The Author of SOPA is a Copyright Violator.

Every time someone complains about Google, a commenter will inevitably riff that, “If you’re not paying for something, you’re not the customer; you’re the product being sold.” But many of us are actually paying for premium versions of Google and other online services available for free. In the case of Google, I’m paying for additional storage on two accounts. It doesn’t seem to matter, though, in that Google has no real customer service to speak of.

But it’s not just the Google suite that has recently annoyed its most loyal users by inexplicable changes to the interfaces and usability of the products. I don’t recall a change to Facebook, Twitter, or any other major online service that I use that has been widely liked. Or, at least, those who like the changes are much less vocal than those who hate them.

Facebook, in particular, seems to change the user experience every couple of months just for the hell of it.