The Supreme Court, in the case of Snyder v. Phelps, et al, yesterday upheld the right of the members of the controversial Westboro Baptist Church to conduct their "public protests" of military serviceman's funerals free from the threat of civil lawsuits by private individuals.
The Kansas-based "church" group had targeted the Snyder family's private funeral for their son Matthew A. Snyder, a Marine Lance Corporal killed in Iraq in 2006, in order, according to the group, to bring attention to certain national "sins" such as abortion and homosexuality which they claim God is punishing America for in the form of increasing "body bags" returning from the ongoing Afghanistan and Iraq wars.
By an 8 to 1 vote the High Court, in upholding a federal Court of Appeals decision throwing out an eleven million dollar jury verdict against the controversial group for the legal tort of "intentional infliction of emotional distress," conceded the provocative language and "painful" effects of the group's vicious rhetoric against the Synder family but ruled, "On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate." (download pdf of whole decision by clicking here http://www.supremecourt.gov/opinions/10pdf/09-751.pdf ).
In so ruling, the majority honed in on several facts of the case, including that the "Baptist" group had chosen a public thoroughfare for the expression of their "speech," had not trespassed or caused any actual disruption to the funeral itself, and had obeyed all direction of the police and public authorities as to appropriate "time and place" restrictions, (which are permissable restrictions to speech under settled First Amendment jurisprudence).
Most significantly, the opinion of the court, authored by Chief Justice John Roberts, soundly rejected the premise that provocative and hurtful words alone, (even if they were related to a private family's personal circumstances, as in the Snyder's case), could form an actionable basis for a law suit under the First Amendment so long as that speech primarily addressed "public issues" of import to society at large. In the Court's words:
"There is no doubt that Westboro chose to stage its picketing at the Naval Academy, the Maryland State House, and Matthew Snyder’s funeral to increase publicity for its views and because of the relation between those sites and its views... The fact that Westboro spoke in connection with a funeral, however, cannot by itself transform the nature of Westboro’s speech.... '[we] must tolerate insulting, and even outrageous, speech in order to provide adequate ‘breathing space’ to the freedoms protected by the First Amendment.' Boos v. Barry, 485 U. S. 312, 322 (1988)... [and] the funeral setting does not alter that conclusion."
However, a vigorous dissent by Justice Samuel Alito revealed a rare split between the Court's Chief Justice and it's last justice appointed by Republican President George W. Bush, (who usually vote together, albeit in more closely divided cases), prompting some initial observations before we get into our assessment and analysis of the opinion itself.
First, the lopsided result of the court's ruling shocked many court watchers (including us) who expected a more divided court upon ideological lines. (Though it remains to be seen whether this is a harbinger of things to come and evidences a diplomatic finesse by Chief Justice John Roberts that at one time had been lauded as one of his possible strengths and theorized as one of the reasons that President George Bush bumped his nomination up to the position of Chief Justice upon the death of previous Supreme Court Chief Justice William Rehnquist while Robert's original nomination was still pending).
Second, this decision continues the trend of the court towards a robust and expansive interpretation of Free Speech rights presaged by last year's much more controversial decision, Citizens United, which held that the government can't restrict free speech expenditures of groups in the American political process, whether classified as unions, corporations, or non-profit organizations. (You'll recall this was the decision made famous by the President's 2010 State of the Union address to a joint house of Congress when Obama publicly chastised the High Court by singling out the Citizens United decision for public approbation for ostensibly opening up the American electoral process to the alleged "corrupting influence" of financial contributions from "foreign sources" contrary to U.S, Election law (indeed, who can forget Alito's shaking his head and mouthing "not true" so reminiscent of the shouts of "you lie" by South Carolina Congressmen Joe Wilson during a special address to a joint session of Congress by Obama in Sept. 2009. As an aside such ominous allusions to never-identified "foreign" sources of influence over the 2010 elections would be repeatedly invoked with reference to the U.S. Chamber of Commerce in the run up to the historic mid-term elections, with no evidence whatsoever provided to support such claims either than or since).
With similar flair here, Justice Alito issued a vigorous and well reasoned dissent emphasizing the outrageous conduct of the Westboro Baptists and directly challenging the majority view by distinguishing the court's precedents in that the Snyder's were not "public figures" under Hustler v Falwell, that "this attack was not speech on a matter of public concern," and characterizing the Westboro Baptist church's actions as "part of a cold and calculated strategy to slash a stranger as a means of attracting public attention." (p. 32, dissenting opinion, Alito, J.)
Breyer, in a separate concurrence, tried to take a somewhat middle road between the two emphasizing the "narrow holding" of the case and that it "does not hold or imply that the State is always powerless to provide private individuals with necessary protection" from such tactics in a different context, (though we admit we have a hard time imagining a context in which any more emotional distress could be inflicted).
Which brings us to our own take on all this.
At the outset, our initial inclination was to cheer the court's decision. After all, the ACLP, as an organization dedicated to promoting Constitutional freedom would in most cases support a broad interpretation of the First Amendment that would maximize freedom of speech. The majority opinion is not badly reasoned or written and has a certain simplicity to it, (especially if one stops there). Which is why we are probably going to shock the majority of our natural allies by saying, nevertheless, we find both our heart-sympathies and minds drawn to justice Alito's dissent.
Indeed, while the majority's obvious intention was to paint with a broad brush in order to preserve with a wide swath critical First Amendment rights, we can't help but feel that the majority may have unnecessarily brandished a shotgun here when a flyswatter may have done just as well.
In fact, we can easily envision the court ruling in favor of upholding the jury's verdict against the Westboro Baptist "Church" without harming principles of First Amendment jurisprudence; in point of fact courts do it all the time by emphasizing their ruling is only applicable to the "particular circumstances of the case" before it and by distinguishing any prior precedents, (which is the exact tack Alito takes in his dissent, see below).
While it is true this must be done very carefully to avoid doing violence to important first principles, (especially when dealing with such critical issues as Freedom of Speech), we think Justice Alito's dissent clearly and effectively does the job here. Indeed, with almost methodical precision at every turn Justice Alito critically examines and successfully refutes the reasoning of the majority and much more coherently, (and convincingly), applies the court's precedents, making this, at least in our view, a much closer case than we might otherwise have expected from an 8-1 decision.
Initially, there is ample evidence the majority's holding that the Westboro Church had not "privately targeted" Matthew or the Snyder family or inordinately focused on their private affairs, (as opposed to merely addressing their "speech" towards issues of public importance), was plainly factually incorrect.
Moreover, in its eagerness to make a statement on the importance of Free Speech the majority's opinion seems to run roughshod over equally important precedents regarding juries as the ultimate fact-finders whose judgments are not to be lightly set aside, and, as Alito points out, the jury clearly found that the Snyder's had been targeted. Indeed, the majority's ignoring, for purposes of its decision, the "epic" posted on the internet immediately after the funeral-- in which Mr. and Mrs. Snyder are vehemently and directly attacked for giving money to the Catholic church, raising their son Matthew "for the devil," and, "in supporting satanic Catholicism, [teaching] Matthew to be an idolater."-- because the Snyder's lawyers had allegedly not properly "preserved" it for review seems to deny for technical reasons what is obvious from Alito's recitation of the record, (and in any case had been considered and found by the jury).
Second, as Alito also pointed out, the Snyder's were not "public figures" such that the lower legal standard of "malice or reckless disregard of the truth" could have applied under their Hustler v. Fallwell decision, (even if it properly applied to "Intentional Infliction of Emotional Distress" actions, which Alito rather conclusively shows it does not).
To the contrary, none of the court's prior precedents preclude prevailing on an intentional infliction claim based on just speech, (as opposed to more invasive actions like trespass, assault, etc.). Indeed, in Alito's words: "I fail to see why actionable speech should be immunized simply because it is interspersed with speech that is protected. The First Amendment allows recovery for defamatory statements that are interspersed with nondefamatory statements on matters of public concern, and there is no good reason why respondents’ attack on Matthew Snyder and his family should be treated differently." (p. 32, dissent by Alito, J.).
Nor, according to Alito, should the location of where the distressing speech took place, (i.e., on a public street), or new laws that may protect families from similar conduct by the Westboro group or others in the future preclude recovery of damages for intentional inflection of emotional distress now if all the elements of the tort are satisfied, (which Alito points out the Westboro church abandoned contesting, and was in any case arguably found to have been satisfied, again, by the fact finder at trial). Again, from the dissent:
"there is no reason why a public street in close proximity to the scene of a funeral should be regarded as a free-fire zone in which otherwise actionable verbal attacks are shielded from
liability. If the First Amendment permits the States to protect their residents from the harm inflicted by such attacks—and the Court does not hold otherwise—then the location of the tort should not be dispositive. A physical assault may occur without trespassing; it is no defense that the perpetrator had “the right to be where [he was].” See ante, at 11. And the same should be true with respect to unprotected speech. Neither classic “fighting words” nor defamatory statements are immunized when they occur in a public place, and there is no good reason to treat a verbal assault based on the conduct or character of a private figure like Matthew Snyder any differently." (p. 33, dissent, Alito, J.)
Moreover, we can't help observe that the majority opinion, while claiming that the Snyder's private enjoyment of their son's funeral was not interfered with as the Snyder's "didn't know" about the protest until later in the evening after the funeral had taken place, seems to contradict its own admission that the Westboro Church group, before the protest, had "notified the authorities" (p. 6, opinion, Roberts, C.J.) and in fact prior to the funeral had issued press releases and received media coverage regarding the controversial group's announced intentions to "protest" Mathew's funeral, (p. 23, dissenting opinion, Alito, J.).
Most damningly, Justice Alito showed the Snyder's met the stringent standards for intentional infliction of emotional distress and that, at best, the church's claims to be merely speaking to matters of grave public concern were in fact merely "cover" for not-too-thinly-disguised personal attacks against the Snyders and their son for being catholic and serving in the military, (p. 31, dissenting opinion, Alito, J.), and, most pernicious, for suggesting, (falsely), that their son was a homosexual and thus deserved God's "judgment," (p. 29, dissenting opinion Alito, J.).
In short, and however we wish we could conclude otherwise in light of our strongly favoring Free Speech generally, we feel that Justice Alito makes a very convincing case that the First Amendment should not preclude collection of damages for an otherwise proven-to-a-jury claim of intentional infliction of emotional distress and in support of his general assertion that "Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case." (p. 23, dissenting opinion, Alito, J.)
What do you think? Was the majority right or do you agree with Justice Alito's dissent? (And relatedly, could the majority's reasoning have been flawed but still have reached the correct outcome?) In what kind of scenario according to the majority's opinion could you now envision a plaintiff successfully prevailing in a suit for IIED?
On the other hand, if you agree with the dissent, do you think upholding the trial court's judgment in this case would have undermined Free Speech? Why or why not? Please register and use comments below to elaborate and add to the discussion or point out anything you think I may have missed. I am particularly curious to know if in spite of the lopsided vote of the court affirming dismissal of the trial court's judgment you agree that the reasoning of the dissent makes this case a closer call than it might otherwise appear from the outcome. jp
Showing posts with label Freedom of Speech. Show all posts
Showing posts with label Freedom of Speech. Show all posts
Wednesday, March 2, 2011
Sunday, January 16, 2011
The President's Tucson speech: Political Pep Rally or Call to Civility?
President Obama's speech last Wednesday at the University of Arizona at Tucson, which spoke poignantly of the victims and the need for national “healing,” was, by all accounts from both ends of the political spectrum, a smashing “political” success. While the President insisted “it is impossible to know what caused” the killing spree of Jared Lee Loughner and indicated that heated political rhetoric had not, in his words, “caused this tragedy,” he also simultaneously (and somewhat contradictorily?) called for more “civility” in public discourse and to resist "turning on one another."
Moreover, although still unclear to whom exactly the President was speaking-- with many on the political left seeming to think he was talking exclusively to conservatives who had just endured an extended pillorying in the national media for ostensibly causing such unspeakable acts of violence with “hate filled” and “extremist rhetoric” over the airwaves, see here-- the President, to his credit, called the nation to eschew denigrating political opponents because they “might not see things the way we do.”
Nevertheless, the “memorial” for the Tucson shooting victims, purportedly meant as a solemn, respectful affair, was reminiscent of the Paul Wellstone memorial in 2002, when democrats and leftist political operatives used the opportunity as a “get out the vote” event to rally the “sympathy vote” for Democratic replacement candidate Former Vice President Walter Mondale against Republican Norm Coleman in the then-imminent 2002 mid-terms, (history does indeed, repeat itself!)
Indeed, the Tucson event had an almost celebratory attitude, replete with loud cheers, whistles, and shouts of acclamation that seemed more like a campaign rally to kick off Obama's 2012 re-election bid than a genuine memorial for the victims, (in spite of the President's moving memorial “rhetoric,” and before you libs get all up in arms about the term which, I admit, has been rather sloppily bandied about of late, but that's what it was in purely technical terms, as is all political speech, look up Webster's definition here, and/or read the classic “Art of Rhetoric” by Aristotle).
Little wonder then that the raucous attitude of the student-majority crowd seemed strangely out of place and offensive to many others watching, including this organization's founder and CEO.
Coming on the heels of national mid-term elections in which the President's party incurred historic losses in the House of Representative and in which, among other things, the President stated, “If they bring a knife, we'll bring a gun,” to many on the political right the speech in Tucson rang hollow and perhaps like mere political posturing akin to putting into action his just resigned Chief of Staff Rham Emmanuel's maxim to “never let a good crisis go to waste.”
Indeed, following the first two years of the Obama Administration which witnessed an incredible self-aggrandizing expansion of Federal power, many of us on the political right are understandably skeptical of the sincerity of Obama's sudden penchant for “civility” and compromise, trusting ourselves rather to our 40th President, Ronald Reagan's rule of thumb, “trust but verify.” Nor can we compromise on principles of importance to this nation of limited government, a strong national defense, and policies that encourage economic growth.
Accordingly, many of us are waiting to see if Obama will truly listen to the voice of the American people spoken so loud and clear in the Mid-term elections which repudiated his progressive agenda at the expense of these values, or will continue on the course he has begun of increasing government nationalization of industry, consolidation of control over free speech and the internet, and higher government taxation and expenditures at a time when we can ill afford it with deficits as far as the eye can see.
Saturday, January 15, 2011
Free Speech and Internet Privacy Armageddon- ipv6
Ok, this is my third (and final?) post in the present series re: erosion of internet privacy, (and the necessarily-related and coterminous threat to constitutionally guaranteed Free Speech that it represents). Coming on the heels of the Tucson Az. shooting spree by a mentally disturbed gunman who killed six and critically injured Congresswoman Gabrielle Giffords (D-AZ), (among others, see Jan. 10, 2011 post on subject), the timing of this post, while not planned, is especially apt in light of recent and subsequent calls by various public officials to "clamp down" on alleged "hate-filled," "divisive" and "extremist" rhetoric from the political right which they assert was, if not a causal factor to this act of unspeakable violence, at least a significant contributing factor, (in spite of no evidence whatsoever to back up such assertions, and indeed, much evidence to the contrary, see Jan. 13, 2011 "Dubya Dupnik" posting on this blog by yours truly :).
Here, however, we are dealing with the potential constitutionally "chilling" effect on free speech that new internet standards rolling out may pose by way of the new technology's ability to conclusively and individually identify every internet-capable device and hence to track and monitor every publicly spoken, (and perhaps not so publicly spoken) utterance made by anyone through the internet, (no matter how lawful, innocuous, or private the nature of such communications).
A lot of the background and "philosophical" underpinning, if you will, that undergirds the right to free speech (and is equally the basis for our entire democratic and free enterprise system by the way) I will not readdress, as it has already been addressed in prior posts and seems to me so basic so as to not require repetition.
Rather, we will now get down to a very real, specific example of how "advances" in the most fundamental technology undergirding how the internet works can be used to track and potentially stifle the Free Speech rights of those with opinions that may dissent from the government or the "majority view" at any given time. Of course, it goes without saying that the freedom to criticize one's own government without fear of reprisal is the hallmark of a free society, (indeed, so important was a free press considered to our Republic by our Founders that it was specifically referred to at the Philadelphia Consitutional convention even before becoming part of our federal Bill of Rights, see here and often referred to as the "Fourth Branch" of the federal government).
It is important to note before getting into all the details that our concerns are not necessarily with specific reference to the Obama Administration, (although obviously, the recent policy and regulatory changes do concern us, see previous posts); Rather, our focus is on the threat to free speech that these changes in fundamental internet technology pose not just under the present administration but future ones vis a vis how such technology and accompanying or new "security" laws and/or regulations may be interpreted and enforced by courts and future Administrations alike and the resulting danger to our democracy and body politic that could result;
Indeed, if there is anything that history teaches us it is that threats to our freedoms often come from well-meaning laws and government regulations that are not always apparent at the time they are instituted, (essentially the immutable law of unintended consequences). In that regard we are mindful of the admonition of Benjamin Franklin that "those who trade liberty for security end up with neither" (paraphrased).
So with that in mind, just what is "ipv6" and how could it pose such a threat? That requires a bit of background and a short primer on computer and "internet protocol" technology and nomenclature.
First, the "ip" part of "ipv6" is short for "internet protocol." What is this? Simply put, it is the fundamental way that computer networks and devices identify and "communicate" with each other when you transmit information, (i.e. "surf"), over the internet. Basically it is the "address" by which other computers know where to send information, (much the way the mailman knows where to send everyone's mail by their home address but in a digitized, electronic format your computer, router or smart phone can interpret, (for more detailed info click here http://computer.howstuffworks.com/internet/basics/internet-infrastructure5.htm ).
The "version six" in ipv6 represents the development level of the technology the same way that most popular software is designated to identify the version that it is, (say for instance regarding a popular browser, Firefox 3.0 v. 2.0). Ipv6 replaces version ipv4 which has been in use since the 1980's as the global standard but for which modification was necessary to accomodate growth in internet usage worldwide, (there is an intermediate internet protocol version "5" which was for the most part considered experimental and never widely implemented, and an envisioned version "8" still in the infant stages of development).
The part relevant to our discussion here is that, regardless of the "internet protocol" version used, every time you get on the internet via computer, ipad, smart phone or any other device, one of these "internet protocol" addresses is assigned to your connection, (either one that is "static" (fixed) or randomly assigned from a "pool" of addresses utilized by your ISP, an addressing paradigm called "dynamic" addressing, for more info on this click here http://www.zytrax.com/isp/faqs/static.htm ).
However, by the very nature of internet protocol technology, your "ip" address can and does reveal much data about your "connection" that could be "personally identifiable," (such as your or your internet provider's general location, browser, referrer and system info). Which brings us to the penultimate difference (and potential threat to free speech) that the newer "internet protocol" version 6 which is gradually being implemented on an internet-wide scale poses, (slated for implementation as of the first of this year, but due to the immensity of hardware updates that will be required in the networks of countless businesses, educational institutions and government agencies ipv6 will take some time to fully implement).
As alluded to above, due mainly to the numerically limited number of addresses inherent in its technology, under the older "ipv4" system predominantly in use at present, common internet access or "gateway" points such as Internet Service Providers (ISP's) or network routers allow all the computers (or devices) accessing the internet through that ISP or network router to "share" the same ip address for communicating over the internet using Network Address Translation, (i.e. N.A.T., see above). Because under ipv4 the use (and data) of each particular device or computer on a network cannot be separated individually from the other computers or devices in use on the network, all the individual devices (and device users) are afforded a certain level of anonymity by essentially "hiding in open view" among the other devices accessing the internet on that network.
One does not have to be a rocket scientist to figure out the implications of this vis a vis the recent decision of the Federal Communications Commission to, for the first time ever, regulate the internet in much the same way they do telephone companies of old, (for examples of how the government has previously exercised its "regulatory" authority over phone companies, including monitoring phone calls of individual citizens through phone companies without any court order or oversight, see the following links http://en.wikipedia.org/wiki/NSA_warrantless_surveillance_controversy , http://www.eweek.com/c/a/Government-IT/EFF-Sues-ATT-for-Role-in-NSA-Eavesdropping/ ).
Accordingly, while previously your surfing habits and the content that you email, tweet, im, post on a blog, etc. was between only you and your ISP, for the first time ever the new internet protocol standards now allow such information, at least theoretically, to potentially be accessed by government actors without court orders or probable cause of any crime committed and to track and identify the beliefs, purchases, and internet habits of anyone they choose.
One doesn't need to be imaginative to think of the effect this could have on journalists charged with bringing us the facts we need to be informed citizens, (a task so important the Founders often referred to a free press as "the fourth branch of government,"), whistleblowers of government corruption, crime, or just the ability of the average every-day-Joe to express his disapproval of government policies without fear of retributions or recriminations (from the government or otherwise. Indeed, during a time in which "conservative political rhetoric" has at least been partly blamed by some on the political left who think Congresswoman Gabrielle Giffords was "targeted" by the gunman in the Tucson attacks due to her political positions and vote on such things as the Obama Administration's health care "reform" bill, we don't think it's a stretch to posit that a plausible fear from, and perhaps even probability of, recriminations for political expression, whether from extreme partisans who disagree with you-- witness the hacking of Sarah Palin's email by the son of a Democratic leader-- mentally disturbed individuals or more "official" sources such as government agents, could not occur. (Nor, as must necessarily be obvious to those who suscribe to the political left's initial theories regarding the motives behind the attack on Congresswomen Giffords, is it a stretch that this could pose an actual threat to persons who express "unpopular" or disfavored opinions). As such there are extremely important public policy reasons to favor anonymity in internet speech.
Indeed, and of most salient concern to us here at the A.C.L.P., for the first time in the history of the web your beliefs and internet history can now and with precision be attributed to you individually along with personally identifying information such as your real name, actual address, employment, and ultimately whatever other information of yours the government wishes to "harvest," (much in the way marketers are already doing, see http://online.wsj.com/public/page/what-they-know-digital-privacy.html ).
Now before you go getting totally freaked out, as is usually the case there is often a beneficial (i.e. "innocent") justification for the change or "advancement" of the technology proffered as necessary, (albeit sometimes with unintended consequences, as above noted), and it is no different here.
Such information "harvested" by the government could undoubtedly be potentially beneficial and have legitimate governmental uses, (such as preventing acts of terrorism).
However, our concern is that such information, (including any or all of the above-mentioned "personally identifying" information), could also be saved and/or added to information in any number of other government databases such as social security, drivers license bureaus, and the like and used to track the beliefs and expressions of political opinion of literally millions of people to be exploited in unintended and potentially unlawful (or even dictatorial) ways that could jeopardize citizens' right to Free Speech. Indeed, such information could potentially be utilized in ways that would make the oppression under the totalitarian government in George Orwell's classic and famous novel "1984" look tame by comparison.
And let's be frank. It is not as if there is no precedent for such things occurring.
In addition to the scandal during the Bush Administration over certain journalists inexplicably being added to the U.S. governments "no fly" terrorist watch list ( LINK) or phone companies at the governments behest "monitoring" international calls of American citizens without probable cause or court oversight, (see http://www.eweek.com/c/a/Government-IT/EFF-Sues-ATT-for-Role-in-NSA-Eavesdropping/ ), one need only look at China to see the potential dangers in using such capabilities to oppress its citizens see link http://www.ft.com/cms/s/0/ef0e7d64-9138-11dc-9590-0000779fd2ac.html#axzz1BxlESg00 , http://www.fiercegovernmentit.com/story/state-department-supports-falun-gong-internet-freedom-group-or-not/2010-05-13). (If you still don't see the danger just ask student protestors or democratic activists whose internet activity was "monitored" before being arrested in order to stop "subversive" demonstrations or activities that could undermine the totalitarian regime).
Now granted, China is a communist country which routinely tracks and monitors the internet activities of all its citizens and we are a democracy with a First Amendment, but again, history has shown us that whenever government has the ability to expand its power unchecked without restraint it usually ends up doing so to the detriment of its citizens, (and as a result could, at least theoretically, be replicated here or in any modern, industrialized country, see examples above).
Please understand, we are not saying that this definitely will happen, or even that developers won't fully and properly address whether and to what extent the new ipv6 standards as implemented will in the end actually allow such invasions of privacy, (see developer's debate at ); but to the extent that international organizations like the United Nations seem unable (or unwilling) to eschew the approval of dictatorial regimes like North Korea or China, (that bastion of open society and freedom of speech), we are concerned, (for what China has to do with the matter at hand see China's publically announced position on this matter at ).
At this juncture and in the spirit of full disclosure it should be said that full understanding and analysis of all the technological details underlying implementation of ipv6 is beyond both the mission and technological knowledge of the ACLP. Such matters we gladly leave to others more learned.
And we certainly realize there will be those who, for their own purposes or interests or just because we DO live in a free country which guarantees them the right to see things differently, may disagree with our concerns or conclusions of potential abuse. (Though, as pointed out above, for those who remain unconvinced of the danger or capability of government to individually identify and track the internet activities and political/ free speech of its citizens China is certainly a perfect case study; just ask any of the Tianamen Square protestors, outlawed home bible study leaders or those who have dared to dissent from the official "party line" of the government who used the Chinese "internet" before being subsequently brutally beaten and jailed for merely exercising First Amendment rights which many of us take for granted.).
For our part, all we can do, using this wonderful technological medium which we in the modern age are privy to and the information it provides to those so inclined, is try to effectively publicize the concerns of those more knowledgeable than ourselves in the hopes to stimulate public discussion and debate on such important issues.
So indeed, while all the technical details may be a bit beyond our purview and mission, the wider potential ramifications to society and the freedoms we in the "Western" world enjoy IS within the mission of the ACLP. Indeed, based on the previously expressed concerns by developers themselves over the privacy implications of ipv6, we remain dedicated to shine a light on such concerns as are raised here so our leaders and those responsible for implementing the new standard will take action to insure that our sancrosanct rights to Free Speech will be protected in the rollout of this new internet technology, (or, for that matter, any other technology that threatens the First Amendment).
In that light, it is our earnest hope that by spurring the ensuing debate and discourse in our body politic which we hope to promote with our small contribution it will lead to our elected leaders and/or those with more technologically savvy and the knowhow and influence to make a difference intervening before it's too late and the cause of liberty suffers to the derogation of our democratic Republic.
Indeed, the serious potential harm to the liberty of our citizens to remain free to express their opinions without fear of reprisal or recriminations, even in spite of all the technological "advancements" and benefits to our modern world that ipv6 promises, would, in our view, be a particularly poor trade, (which is why we have addressed it here).
With your help we can hopefully avert any such problems and render all our concerns moot. In fact, nothing would make us happier here at the A.C.L.P. than to be assured that the free speech rights of all Americans, regardless of political pursuasion, continue to be fully protected in their expression and that potential collateral encroachment of new technologies such as ipv6 upon our basic liberties would be restricted in this era of ever-expanding governmental power.
It is for that that we strive, and ask all to join us in this worthy cause. Indeed, with the ever-increasing march of technology and the conflict that sometimes poses to the cause of freedom the future of our sancrosanct liberty to freely speak and criticize our government may just be at stake. jp
Here, however, we are dealing with the potential constitutionally "chilling" effect on free speech that new internet standards rolling out may pose by way of the new technology's ability to conclusively and individually identify every internet-capable device and hence to track and monitor every publicly spoken, (and perhaps not so publicly spoken) utterance made by anyone through the internet, (no matter how lawful, innocuous, or private the nature of such communications).
A lot of the background and "philosophical" underpinning, if you will, that undergirds the right to free speech (and is equally the basis for our entire democratic and free enterprise system by the way) I will not readdress, as it has already been addressed in prior posts and seems to me so basic so as to not require repetition.
Rather, we will now get down to a very real, specific example of how "advances" in the most fundamental technology undergirding how the internet works can be used to track and potentially stifle the Free Speech rights of those with opinions that may dissent from the government or the "majority view" at any given time. Of course, it goes without saying that the freedom to criticize one's own government without fear of reprisal is the hallmark of a free society, (indeed, so important was a free press considered to our Republic by our Founders that it was specifically referred to at the Philadelphia Consitutional convention even before becoming part of our federal Bill of Rights, see here and often referred to as the "Fourth Branch" of the federal government).
It is important to note before getting into all the details that our concerns are not necessarily with specific reference to the Obama Administration, (although obviously, the recent policy and regulatory changes do concern us, see previous posts); Rather, our focus is on the threat to free speech that these changes in fundamental internet technology pose not just under the present administration but future ones vis a vis how such technology and accompanying or new "security" laws and/or regulations may be interpreted and enforced by courts and future Administrations alike and the resulting danger to our democracy and body politic that could result;
Indeed, if there is anything that history teaches us it is that threats to our freedoms often come from well-meaning laws and government regulations that are not always apparent at the time they are instituted, (essentially the immutable law of unintended consequences). In that regard we are mindful of the admonition of Benjamin Franklin that "those who trade liberty for security end up with neither" (paraphrased).
So with that in mind, just what is "ipv6" and how could it pose such a threat? That requires a bit of background and a short primer on computer and "internet protocol" technology and nomenclature.
First, the "ip" part of "ipv6" is short for "internet protocol." What is this? Simply put, it is the fundamental way that computer networks and devices identify and "communicate" with each other when you transmit information, (i.e. "surf"), over the internet. Basically it is the "address" by which other computers know where to send information, (much the way the mailman knows where to send everyone's mail by their home address but in a digitized, electronic format your computer, router or smart phone can interpret, (for more detailed info click here http://computer.howstuffworks.com/internet/basics/internet-infrastructure5.htm ).
The "version six" in ipv6 represents the development level of the technology the same way that most popular software is designated to identify the version that it is, (say for instance regarding a popular browser, Firefox 3.0 v. 2.0). Ipv6 replaces version ipv4 which has been in use since the 1980's as the global standard but for which modification was necessary to accomodate growth in internet usage worldwide, (there is an intermediate internet protocol version "5" which was for the most part considered experimental and never widely implemented, and an envisioned version "8" still in the infant stages of development).
Basically, due to the explosion of technology and internet capable devices in use among the world's six billion or so inhabitants, the number of available "addresses" for such devices should be depleted early this year. (While not relevant to our discussion this is partly due to the rise and increased financial clout of the middle class in formerly under-developed countries like India and China, and also the inherent limitations in ipv4's shorter data strings which "only" allow for a maximum of 4.3 billion ip addresses, compared to ipv6 which allows for a mind boggling minimum of at least a trillion times more, click here for a more detailed explanation http://ripe.net/info/faq/IPv6-deployment.html).
In large part due to the anticipated exhaustion of available "ip addresses" under upv4, the use of "Network Address Translation," a process whereby many different internet capable devices can access the internet under one, main ip address, has become widely implemented with both drawbacks and, depending on the context and who you ask, advantages, (see http://en.wikipedia.org/wiki/Network_address_translation ).
In large part due to the anticipated exhaustion of available "ip addresses" under upv4, the use of "Network Address Translation," a process whereby many different internet capable devices can access the internet under one, main ip address, has become widely implemented with both drawbacks and, depending on the context and who you ask, advantages, (see http://en.wikipedia.org/wiki/Network_address_translation ).
However, by the very nature of internet protocol technology, your "ip" address can and does reveal much data about your "connection" that could be "personally identifiable," (such as your or your internet provider's general location, browser, referrer and system info). Which brings us to the penultimate difference (and potential threat to free speech) that the newer "internet protocol" version 6 which is gradually being implemented on an internet-wide scale poses, (slated for implementation as of the first of this year, but due to the immensity of hardware updates that will be required in the networks of countless businesses, educational institutions and government agencies ipv6 will take some time to fully implement).
As alluded to above, due mainly to the numerically limited number of addresses inherent in its technology, under the older "ipv4" system predominantly in use at present, common internet access or "gateway" points such as Internet Service Providers (ISP's) or network routers allow all the computers (or devices) accessing the internet through that ISP or network router to "share" the same ip address for communicating over the internet using Network Address Translation, (i.e. N.A.T., see above). Because under ipv4 the use (and data) of each particular device or computer on a network cannot be separated individually from the other computers or devices in use on the network, all the individual devices (and device users) are afforded a certain level of anonymity by essentially "hiding in open view" among the other devices accessing the internet on that network.
Therefore, anyone wishing to follow or "snoop" on your activities in cyberspace, (such as posting on this blog :) could not be sure of your identity by simply "following" your internet activities from your desktop, to ipad, to smartphone, (you could, after all, simply be one person of many on a given network or using your internet service provider's "dynamic" ip assigned you from their "pool" at the time you signed on).
Under ipv6, however, every single internet capable device you own will be assigned its own unique ip address. Moreover, every internet capable device has, due to its own individual M.A.C. (Machine Access Control) number hard coded into it, the capability to be conclusively identified with a digital "fingerprint" in very much the same way that a human fingerprint can be used to identify individuals.
In short, and quite simply, through combining identification of your devices's "MAC" address with your ip address and internet history, your internet service provider, (and, in the case of using wireless, virtually anyone with knowhow), could potentially both monitor and individually identify your every move and content of your "transmissions" in cyberspace in a way so as to personally identify you, virtually eliminating anonymity from internet speech and causing the strong potential for an according "chilling" of the speech rights of individuals not willing to risk exercising their First Amendment rights to speak out freely if it means their identity could be positively identified.One does not have to be a rocket scientist to figure out the implications of this vis a vis the recent decision of the Federal Communications Commission to, for the first time ever, regulate the internet in much the same way they do telephone companies of old, (for examples of how the government has previously exercised its "regulatory" authority over phone companies, including monitoring phone calls of individual citizens through phone companies without any court order or oversight, see the following links http://en.wikipedia.org/wiki/NSA_warrantless_surveillance_controversy , http://www.eweek.com/c/a/Government-IT/EFF-Sues-ATT-for-Role-in-NSA-Eavesdropping/ ).
Accordingly, while previously your surfing habits and the content that you email, tweet, im, post on a blog, etc. was between only you and your ISP, for the first time ever the new internet protocol standards now allow such information, at least theoretically, to potentially be accessed by government actors without court orders or probable cause of any crime committed and to track and identify the beliefs, purchases, and internet habits of anyone they choose.
One doesn't need to be imaginative to think of the effect this could have on journalists charged with bringing us the facts we need to be informed citizens, (a task so important the Founders often referred to a free press as "the fourth branch of government,"), whistleblowers of government corruption, crime, or just the ability of the average every-day-Joe to express his disapproval of government policies without fear of retributions or recriminations (from the government or otherwise. Indeed, during a time in which "conservative political rhetoric" has at least been partly blamed by some on the political left who think Congresswoman Gabrielle Giffords was "targeted" by the gunman in the Tucson attacks due to her political positions and vote on such things as the Obama Administration's health care "reform" bill, we don't think it's a stretch to posit that a plausible fear from, and perhaps even probability of, recriminations for political expression, whether from extreme partisans who disagree with you-- witness the hacking of Sarah Palin's email by the son of a Democratic leader-- mentally disturbed individuals or more "official" sources such as government agents, could not occur. (Nor, as must necessarily be obvious to those who suscribe to the political left's initial theories regarding the motives behind the attack on Congresswomen Giffords, is it a stretch that this could pose an actual threat to persons who express "unpopular" or disfavored opinions). As such there are extremely important public policy reasons to favor anonymity in internet speech.
Indeed, and of most salient concern to us here at the A.C.L.P., for the first time in the history of the web your beliefs and internet history can now and with precision be attributed to you individually along with personally identifying information such as your real name, actual address, employment, and ultimately whatever other information of yours the government wishes to "harvest," (much in the way marketers are already doing, see http://online.wsj.com/public/page/what-they-know-digital-privacy.html ).
Now before you go getting totally freaked out, as is usually the case there is often a beneficial (i.e. "innocent") justification for the change or "advancement" of the technology proffered as necessary, (albeit sometimes with unintended consequences, as above noted), and it is no different here.
Such information "harvested" by the government could undoubtedly be potentially beneficial and have legitimate governmental uses, (such as preventing acts of terrorism).
However, our concern is that such information, (including any or all of the above-mentioned "personally identifying" information), could also be saved and/or added to information in any number of other government databases such as social security, drivers license bureaus, and the like and used to track the beliefs and expressions of political opinion of literally millions of people to be exploited in unintended and potentially unlawful (or even dictatorial) ways that could jeopardize citizens' right to Free Speech. Indeed, such information could potentially be utilized in ways that would make the oppression under the totalitarian government in George Orwell's classic and famous novel "1984" look tame by comparison.
And let's be frank. It is not as if there is no precedent for such things occurring.
In addition to the scandal during the Bush Administration over certain journalists inexplicably being added to the U.S. governments "no fly" terrorist watch list ( LINK) or phone companies at the governments behest "monitoring" international calls of American citizens without probable cause or court oversight, (see http://www.eweek.com/c/a/Government-IT/EFF-Sues-ATT-for-Role-in-NSA-Eavesdropping/ ), one need only look at China to see the potential dangers in using such capabilities to oppress its citizens see link http://www.ft.com/cms/s/0/ef0e7d64-9138-11dc-9590-0000779fd2ac.html#axzz1BxlESg00 , http://www.fiercegovernmentit.com/story/state-department-supports-falun-gong-internet-freedom-group-or-not/2010-05-13). (If you still don't see the danger just ask student protestors or democratic activists whose internet activity was "monitored" before being arrested in order to stop "subversive" demonstrations or activities that could undermine the totalitarian regime).
Now granted, China is a communist country which routinely tracks and monitors the internet activities of all its citizens and we are a democracy with a First Amendment, but again, history has shown us that whenever government has the ability to expand its power unchecked without restraint it usually ends up doing so to the detriment of its citizens, (and as a result could, at least theoretically, be replicated here or in any modern, industrialized country, see examples above).
Please understand, we are not saying that this definitely will happen, or even that developers won't fully and properly address whether and to what extent the new ipv6 standards as implemented will in the end actually allow such invasions of privacy, (see developer's debate at ); but to the extent that international organizations like the United Nations seem unable (or unwilling) to eschew the approval of dictatorial regimes like North Korea or China, (that bastion of open society and freedom of speech), we are concerned, (for what China has to do with the matter at hand see China's publically announced position on this matter at ).
At this juncture and in the spirit of full disclosure it should be said that full understanding and analysis of all the technological details underlying implementation of ipv6 is beyond both the mission and technological knowledge of the ACLP. Such matters we gladly leave to others more learned.
And we certainly realize there will be those who, for their own purposes or interests or just because we DO live in a free country which guarantees them the right to see things differently, may disagree with our concerns or conclusions of potential abuse. (Though, as pointed out above, for those who remain unconvinced of the danger or capability of government to individually identify and track the internet activities and political/ free speech of its citizens China is certainly a perfect case study; just ask any of the Tianamen Square protestors, outlawed home bible study leaders or those who have dared to dissent from the official "party line" of the government who used the Chinese "internet" before being subsequently brutally beaten and jailed for merely exercising First Amendment rights which many of us take for granted.).
For our part, all we can do, using this wonderful technological medium which we in the modern age are privy to and the information it provides to those so inclined, is try to effectively publicize the concerns of those more knowledgeable than ourselves in the hopes to stimulate public discussion and debate on such important issues.
So indeed, while all the technical details may be a bit beyond our purview and mission, the wider potential ramifications to society and the freedoms we in the "Western" world enjoy IS within the mission of the ACLP. Indeed, based on the previously expressed concerns by developers themselves over the privacy implications of ipv6, we remain dedicated to shine a light on such concerns as are raised here so our leaders and those responsible for implementing the new standard will take action to insure that our sancrosanct rights to Free Speech will be protected in the rollout of this new internet technology, (or, for that matter, any other technology that threatens the First Amendment).
In that light, it is our earnest hope that by spurring the ensuing debate and discourse in our body politic which we hope to promote with our small contribution it will lead to our elected leaders and/or those with more technologically savvy and the knowhow and influence to make a difference intervening before it's too late and the cause of liberty suffers to the derogation of our democratic Republic.
Indeed, the serious potential harm to the liberty of our citizens to remain free to express their opinions without fear of reprisal or recriminations, even in spite of all the technological "advancements" and benefits to our modern world that ipv6 promises, would, in our view, be a particularly poor trade, (which is why we have addressed it here).
With your help we can hopefully avert any such problems and render all our concerns moot. In fact, nothing would make us happier here at the A.C.L.P. than to be assured that the free speech rights of all Americans, regardless of political pursuasion, continue to be fully protected in their expression and that potential collateral encroachment of new technologies such as ipv6 upon our basic liberties would be restricted in this era of ever-expanding governmental power.
It is for that that we strive, and ask all to join us in this worthy cause. Indeed, with the ever-increasing march of technology and the conflict that sometimes poses to the cause of freedom the future of our sancrosanct liberty to freely speak and criticize our government may just be at stake. jp
Thursday, January 13, 2011
Dubya Dupnik- Keystone cop or intentional smokescreen to defer attention from own malfeasance and/or incompetence?
In the aftermath of the tragic shooting rampage last Saturday in Tucson, Az. by disturbed gunman Jared Lee Loughner and the subsequent and public "impromptu" comments of the Tucson (Pima County) Sheriff Clarence Dupnik blaming conservative media and a "poisonous" political environment allegedly spurred on by the "divisive rhetoric" of the Tea Party movement and conservative figures like Rush Limbaugh and Sarah Palin, see here, questions are now coming to light about what the Tucson Sheriff knew about the shooter prior to this tragedy and whether it could have been prevented. In particular, many are now asking of Sheriff Dupnik what he knew and when he knew it and questioning his possible motives for his startlingly public and partisan statements following the shootings. But first, a little context.
Democrat Sheriff Dupnik has been in office for more three decades, his influence waning in local politics due to an increasingly conservative electorate wearying of picking up the tab for the continual and negative repercussions to Pima County's educational, health and public safety systems that rampant illegal immigration has imposed on the taxpayers of this overwhelmingly Republican state. (Indeed, as shooting victim Congresswoman Giffords had recently bemoaned, she was the lone remaining Democrat in the state's Congressional delegation). Indeed, Sheriff Dupnik has increasingly fought not to be overshadowed by his more media saavy counterpart to the North, Maricopa County Sheriff Joe Airipo, and faced a Republican challenger in the 2008 elections.
At the "Congress on the Corner" event at which Congresswoman Giffords was to speak to constituents, (which, btw, had been widely advertised far in advance), there were no sheriff's deputies or personnel whatsoever, in spite of the Safeway grocery complex where the event took place being in the Sheriff's jurisdiction.
However, almost immediately after the shooting, when it was clear Sheriff Dupnik's conduct and that of his office would come under scrutiny, (and before there could hardly have been a thorough investigation to determine the facts), Sheriff Dupnik announced there was a potential "second suspect" --for which more information would be forthcoming and of whom it was implied may have assisted Mr. Loughner in carrying out this heinous crime-- based on, well what exactly? One alleged and random picture from a grocery store camera. (This mind you when they already had the undisputed shooter Mr. Loughner in custody). Of course, subsequently we heard nothing more about said "second suspect."
Instead, when it became clear that Mr. Loughner was a mentally disturbed individual who had acted alone, Sheriff Dupnik curiously and suddenly shifted his focus and decided to go public with his "earnest concerns" about the "dangerous" political speech supposedly emmanating from the center-right, see here.
One doesn't have to be a rocket scientist to tell, even from this limited narrative, that Sheriff Dupnik clearly had reason to deflect attention from his department's failing to provide adequate security for this political event in the first place and was plausibly trying to distract attention from his own failings by mentioning the "second suspect" theory and, when that didn't work, following it up with sensational claims about the "vitriolic" rhetoric of the political right that would instantly shore up his support among Democrats, (if not succeed in deflecting criticism of him and his department among the electorate generally).
In light of the revelation that Sheriff's deputies were well aware of the bizarre and threatening behavior of Mr. Loughner in the days and months prior to his shooting spree last Saturday that took the lives of six and injured 13 others, (as they had been called re: his conduct multiple times and Loughner had been in various scrapes with the law), Sheriff Dupnik clearly had reason to be concerned.
Indeed, many are now questioning (and rightly so) whether, rather than being motivated by any public interest to change the "political climate"-- and certainly not to help "solve" the crime as such statements were superfluous in light of already having Mr. Loughner in custody-- Sheriff Dubnik's public comments were instead offered with this specific purpose of attempting to distract from the increasing realization that the Pima county Sheriff's Department may have negligently dropped the ball in failing to institute legal proceedings that could have forced Mr. Loughner to get badly needed mental health treatment (as is done all the time under established Arizona law).
In any case, Sheriff Dupnik's sharing his "political opinions" was extremely unprofessional and had nothing to do with the criminal investigation nor his official duties, click here (Indeed, by providing legal cover to potential claims of public "bias" by Mr. Loughner's legal defense team, Sheriff Dupnik may in fact have prejudiced the legal case against Mr. Loughner.)
As it can not reasonably be said that with over 50 years of experience in law enforcement Sheriff Dupnik took these actions "accidentally" without knowledge of the consequences, we are accordingly forced to address the elephant in the room alluded to above, namely:
Could the reason for the unfounded and impromptu attacks of Sheriff Dupnik on conservatives for this unspeakable act of violence really be just a smokescreen to distract from his and his department's own failings and culpability in this tragedy?
We find this explanation compelling in light of the following facts:
1. There is absolutely no evidence that Mr. Loughner was, in fact, motivated by conservative/ "right wing" political ideas or even listened to so called "conservative media" (e.g., Fox News, talk radio, etc), or, for that matter, was even a close follower of politics at all.
To the contrary, friends of Mr. Loughner's expressly stated in public interviews that he didn't watch cable t.v. or even listen to talk radio, (the alleged chief purveyer of the afore-mentioned "vitriolic and dangerous" political rhetoric of which Sheriff Dupnik spoke and which would become a repeated mantra of the blamestream media in the ensuing days). To the contrary, Mr. Loughner, judging from his published you tube profile, see screen shot here, turned out to be a fan of the Communist Manifesto and "Mein Kampf," (hardly reading staples of the political right in this country except perhaps among truly extremist groups which have no connection to figures such as Rush Limbaugh or Sarah Palin, the constant scapegoats of the left).
Mr. Loughner was also a registered Independent who didn't even vote in the last elections. How it possibly makes sense under this set of facts to label him as influenced by allegedly "vitriolic" conservative political rhetoric instead of suffering from mere insanity defies rational explanation. (Indeed, in light of his known political affiliation, doing so makes no more sense than blaming Mr. Loughner's deadly outburst of public violence on Independents, an equally preposterous position).
Such reasoning to us seems akin to saying, (hypothetically of course), that because families on food stamps tend to have heads of home with less stable employment histories than comparable families not on foodstamps, public assistance causes laziness or a poor work ethic, (a conclusion we are sure those on the left would vociferously disagree with!), or that because most murderers have smoked marijuana, pot creates killers, or that Loughner's penchant for heavy metal music and skull worship made him murderous, (hmmm, now there's a thought!) Nuff said.
2. The Sheriff was extremely familiar with the accused and his family as evidenced by his pointing out in his impromptu "press conference" shortly after the shootings such things as his knowledge of the "proper" pronounciation of the accused's last name, see here, as well as the gunman's propensity to violence and mental illness, see here.
Moreover, Sheriff Dupnik explicitly admitted he was familiar with both Loughner and the potential danger the gunman posed, professing in public statements mere hours after the shootings that "there have been law enforcement contacts with the individual where he made threats to kill," and that the shooter had “a mental issue."
Notwithstanding it would have been extremely difficult to claim the contrary, (as Sheriff's deputies had visited and/or been called out to the Loughner residence, where the gunman lived with his family, on numerous occasions), and in themselves without a fuller understanding of their context such calls prove nothing, in light of the open admissions of the Sheriff's familiarity with Mr. Loughner it his clear that he and his department were undoubtedly aware of Loughner's mental state and risk to the public, especially in light of the gunman's documented propensity for violent threats, see
As such, and in light of his duty to protect members of the public and the comparatively lax threshold required to force people to receive needed mental health treatment in Arizona, the failure of the Sheriff to ever refer Mr. Loughner for such proceedings, (for which no crime is required to have been committed), seems exceptionally negligent and a dereliction of duty.
3. The accused was not a member or affiliated with any Tea Party group or conservative organization. In fact, as best we know, he has never been a member of any conservative or even "controversial" party, group or organization, (but was rather an Independent, as shown above).
Such inferences, which were disgustingly exploited and popularized by New York Times columnist Paul Krugman and the political left for partisan political purposes literally within hours of the shootings in order to promote their oft-repeated and pre-ordained agenda of discrediting the Tea Party and center-right political figures like former Vice Presidential Candidate Sarah Palin and Congresswoman Michelle Bachman, (D-MN), are flatly untrue and lack substantiation with any facts whatsoever. A Report by Fox News referring to an allegedly "secret" memo from Homeland Security that Mr. Loughner was a member of the oft-mentioned and allegedly extremist group 'American Renaissance' was vociferously disputed, see here, and subsequently retracted by Fox, see here.
4. Mr. Loughner, in the days leading up to the shootings, is reported to have been making death threats against various local news bloggers and students and professors of Pima Community College, see here (which had been so concerned with Mr. Loughner's behavior previously that it had kicked him out and sent a letter to his parents expressing their concerns and informing them he could not return unless he received psychiatric help). Additionally, so concerned were some of those threatened that they reported Mr. Loughner to the Sheriff's department only to receive assurances from deputies that he was being well "managed" by the mental health system. (Obviously, we now know this wasn't true).
5. It is now known that Amy Loughner, (shooter Jared Loughner's mother), works in local government as a county manager for Tucson's Parks Department. Which leads us to wonder out loud, is it possible this is the reason why her son, in spite of his many scrapes with the law and three arrests, has never had any convictions or mental health "civil committment" proceedings instituted? Not that we don't think it's any less tragic, or even pleasant to have to ask-- and certainly no one wishes to unnecessarily impose upon the family directly involved in this tragedy, Lord knows they have a lot on their plate as it is-- but it does raise an important question vis a vis a possible "cover up" by authorities for "political" reasons and is imperative to be fully vetted in order to aid in preventing future tragedies like this from ever recurring again, (and, as the Truth and Justice commission in S. Africa was fond of pointing out, there can be no justice, no reconciliation in the community, until all the truth is told).
In that light then, the very pertinent question here is, "Was any special treatment given to Mr. Loughner and/or was he ever not fully prosecuted because of his mother's position working in local government?"
Indeed, the answer to such questions are critical as they go to the very heart of citizens' ability to have faith in the fair and non-corrupt functioning of their government without cronyism or partiality of any kind, and we hope become, in addition to the Sheriff, subjects that are included in a probe by the Arizona Bureau of Investigation to insure we get to the bottom of this terrible tragedy and understand all the reasons for its occurring so we can more effectively prevent such things from happening again.
It also tangentially raises other questions, namely: Is there is any kind of political or financial connection between the Loughner family and Sheriff Dupnik that could explain the inaction of the Sheriff's department in the face of such obvious disfunction and/or illness in the Loughner home and/or Sheriff Dupnik's strange post-rampage comments seeking a scapegoat in the right? The questions abound.
6. Finally, in what is perhaps most compelling, is simply the above-illustrated strange behavior of Sheriff Dupnik. Again, why a Sheriff with over 40 years of law enforcement experience and a lone suspect in custody for the crime-- who certainly knows enough not to risk prosecution of a criminal case by revealing information publicly that could be alleged to "taint" the jury to try Mr. Loughner-- would ever go on the record with such legally pointless but politically incendiary claims as Sheriff Dupnik made in his "press" conferences utterly defies rational explanation. Unless, that is, he did so to distract from his own moral (and perhaps legal) culpability for his dismal failure to faithfully execute his job and take action in forwarding Mr. Loughner's case through the appropriate channels in order to force him to receive some (obviously) badly needed mental health treatment prior to this tragedy occurring.
Hopefully such questions will be answered in due course; the victims of this tragedy, indeed, the entire nation, deserves no less. jp
Democrat Sheriff Dupnik has been in office for more three decades, his influence waning in local politics due to an increasingly conservative electorate wearying of picking up the tab for the continual and negative repercussions to Pima County's educational, health and public safety systems that rampant illegal immigration has imposed on the taxpayers of this overwhelmingly Republican state. (Indeed, as shooting victim Congresswoman Giffords had recently bemoaned, she was the lone remaining Democrat in the state's Congressional delegation). Indeed, Sheriff Dupnik has increasingly fought not to be overshadowed by his more media saavy counterpart to the North, Maricopa County Sheriff Joe Airipo, and faced a Republican challenger in the 2008 elections.
At the "Congress on the Corner" event at which Congresswoman Giffords was to speak to constituents, (which, btw, had been widely advertised far in advance), there were no sheriff's deputies or personnel whatsoever, in spite of the Safeway grocery complex where the event took place being in the Sheriff's jurisdiction.
However, almost immediately after the shooting, when it was clear Sheriff Dupnik's conduct and that of his office would come under scrutiny, (and before there could hardly have been a thorough investigation to determine the facts), Sheriff Dupnik announced there was a potential "second suspect" --for which more information would be forthcoming and of whom it was implied may have assisted Mr. Loughner in carrying out this heinous crime-- based on, well what exactly? One alleged and random picture from a grocery store camera. (This mind you when they already had the undisputed shooter Mr. Loughner in custody). Of course, subsequently we heard nothing more about said "second suspect."
Instead, when it became clear that Mr. Loughner was a mentally disturbed individual who had acted alone, Sheriff Dupnik curiously and suddenly shifted his focus and decided to go public with his "earnest concerns" about the "dangerous" political speech supposedly emmanating from the center-right, see here.
One doesn't have to be a rocket scientist to tell, even from this limited narrative, that Sheriff Dupnik clearly had reason to deflect attention from his department's failing to provide adequate security for this political event in the first place and was plausibly trying to distract attention from his own failings by mentioning the "second suspect" theory and, when that didn't work, following it up with sensational claims about the "vitriolic" rhetoric of the political right that would instantly shore up his support among Democrats, (if not succeed in deflecting criticism of him and his department among the electorate generally).
In light of the revelation that Sheriff's deputies were well aware of the bizarre and threatening behavior of Mr. Loughner in the days and months prior to his shooting spree last Saturday that took the lives of six and injured 13 others, (as they had been called re: his conduct multiple times and Loughner had been in various scrapes with the law), Sheriff Dupnik clearly had reason to be concerned.
Indeed, many are now questioning (and rightly so) whether, rather than being motivated by any public interest to change the "political climate"-- and certainly not to help "solve" the crime as such statements were superfluous in light of already having Mr. Loughner in custody-- Sheriff Dubnik's public comments were instead offered with this specific purpose of attempting to distract from the increasing realization that the Pima county Sheriff's Department may have negligently dropped the ball in failing to institute legal proceedings that could have forced Mr. Loughner to get badly needed mental health treatment (as is done all the time under established Arizona law).
In any case, Sheriff Dupnik's sharing his "political opinions" was extremely unprofessional and had nothing to do with the criminal investigation nor his official duties, click here (Indeed, by providing legal cover to potential claims of public "bias" by Mr. Loughner's legal defense team, Sheriff Dupnik may in fact have prejudiced the legal case against Mr. Loughner.)
As it can not reasonably be said that with over 50 years of experience in law enforcement Sheriff Dupnik took these actions "accidentally" without knowledge of the consequences, we are accordingly forced to address the elephant in the room alluded to above, namely:
Could the reason for the unfounded and impromptu attacks of Sheriff Dupnik on conservatives for this unspeakable act of violence really be just a smokescreen to distract from his and his department's own failings and culpability in this tragedy?
We find this explanation compelling in light of the following facts:
1. There is absolutely no evidence that Mr. Loughner was, in fact, motivated by conservative/ "right wing" political ideas or even listened to so called "conservative media" (e.g., Fox News, talk radio, etc), or, for that matter, was even a close follower of politics at all.
To the contrary, friends of Mr. Loughner's expressly stated in public interviews that he didn't watch cable t.v. or even listen to talk radio, (the alleged chief purveyer of the afore-mentioned "vitriolic and dangerous" political rhetoric of which Sheriff Dupnik spoke and which would become a repeated mantra of the blamestream media in the ensuing days). To the contrary, Mr. Loughner, judging from his published you tube profile, see screen shot here, turned out to be a fan of the Communist Manifesto and "Mein Kampf," (hardly reading staples of the political right in this country except perhaps among truly extremist groups which have no connection to figures such as Rush Limbaugh or Sarah Palin, the constant scapegoats of the left).
Mr. Loughner was also a registered Independent who didn't even vote in the last elections. How it possibly makes sense under this set of facts to label him as influenced by allegedly "vitriolic" conservative political rhetoric instead of suffering from mere insanity defies rational explanation. (Indeed, in light of his known political affiliation, doing so makes no more sense than blaming Mr. Loughner's deadly outburst of public violence on Independents, an equally preposterous position).
2. The Sheriff was extremely familiar with the accused and his family as evidenced by his pointing out in his impromptu "press conference" shortly after the shootings such things as his knowledge of the "proper" pronounciation of the accused's last name, see here, as well as the gunman's propensity to violence and mental illness, see here.
Moreover, Sheriff Dupnik explicitly admitted he was familiar with both Loughner and the potential danger the gunman posed, professing in public statements mere hours after the shootings that "there have been law enforcement contacts with the individual where he made threats to kill," and that the shooter had “a mental issue."
Notwithstanding it would have been extremely difficult to claim the contrary, (as Sheriff's deputies had visited and/or been called out to the Loughner residence, where the gunman lived with his family, on numerous occasions), and in themselves without a fuller understanding of their context such calls prove nothing, in light of the open admissions of the Sheriff's familiarity with Mr. Loughner it his clear that he and his department were undoubtedly aware of Loughner's mental state and risk to the public, especially in light of the gunman's documented propensity for violent threats, see
As such, and in light of his duty to protect members of the public and the comparatively lax threshold required to force people to receive needed mental health treatment in Arizona, the failure of the Sheriff to ever refer Mr. Loughner for such proceedings, (for which no crime is required to have been committed), seems exceptionally negligent and a dereliction of duty.
3. The accused was not a member or affiliated with any Tea Party group or conservative organization. In fact, as best we know, he has never been a member of any conservative or even "controversial" party, group or organization, (but was rather an Independent, as shown above).
Such inferences, which were disgustingly exploited and popularized by New York Times columnist Paul Krugman and the political left for partisan political purposes literally within hours of the shootings in order to promote their oft-repeated and pre-ordained agenda of discrediting the Tea Party and center-right political figures like former Vice Presidential Candidate Sarah Palin and Congresswoman Michelle Bachman, (D-MN), are flatly untrue and lack substantiation with any facts whatsoever. A Report by Fox News referring to an allegedly "secret" memo from Homeland Security that Mr. Loughner was a member of the oft-mentioned and allegedly extremist group 'American Renaissance' was vociferously disputed, see here, and subsequently retracted by Fox, see here.
4. Mr. Loughner, in the days leading up to the shootings, is reported to have been making death threats against various local news bloggers and students and professors of Pima Community College, see here (which had been so concerned with Mr. Loughner's behavior previously that it had kicked him out and sent a letter to his parents expressing their concerns and informing them he could not return unless he received psychiatric help). Additionally, so concerned were some of those threatened that they reported Mr. Loughner to the Sheriff's department only to receive assurances from deputies that he was being well "managed" by the mental health system. (Obviously, we now know this wasn't true).
5. It is now known that Amy Loughner, (shooter Jared Loughner's mother), works in local government as a county manager for Tucson's Parks Department. Which leads us to wonder out loud, is it possible this is the reason why her son, in spite of his many scrapes with the law and three arrests, has never had any convictions or mental health "civil committment" proceedings instituted? Not that we don't think it's any less tragic, or even pleasant to have to ask-- and certainly no one wishes to unnecessarily impose upon the family directly involved in this tragedy, Lord knows they have a lot on their plate as it is-- but it does raise an important question vis a vis a possible "cover up" by authorities for "political" reasons and is imperative to be fully vetted in order to aid in preventing future tragedies like this from ever recurring again, (and, as the Truth and Justice commission in S. Africa was fond of pointing out, there can be no justice, no reconciliation in the community, until all the truth is told).
In that light then, the very pertinent question here is, "Was any special treatment given to Mr. Loughner and/or was he ever not fully prosecuted because of his mother's position working in local government?"
Indeed, the answer to such questions are critical as they go to the very heart of citizens' ability to have faith in the fair and non-corrupt functioning of their government without cronyism or partiality of any kind, and we hope become, in addition to the Sheriff, subjects that are included in a probe by the Arizona Bureau of Investigation to insure we get to the bottom of this terrible tragedy and understand all the reasons for its occurring so we can more effectively prevent such things from happening again.
It also tangentially raises other questions, namely: Is there is any kind of political or financial connection between the Loughner family and Sheriff Dupnik that could explain the inaction of the Sheriff's department in the face of such obvious disfunction and/or illness in the Loughner home and/or Sheriff Dupnik's strange post-rampage comments seeking a scapegoat in the right? The questions abound.
6. Finally, in what is perhaps most compelling, is simply the above-illustrated strange behavior of Sheriff Dupnik. Again, why a Sheriff with over 40 years of law enforcement experience and a lone suspect in custody for the crime-- who certainly knows enough not to risk prosecution of a criminal case by revealing information publicly that could be alleged to "taint" the jury to try Mr. Loughner-- would ever go on the record with such legally pointless but politically incendiary claims as Sheriff Dupnik made in his "press" conferences utterly defies rational explanation. Unless, that is, he did so to distract from his own moral (and perhaps legal) culpability for his dismal failure to faithfully execute his job and take action in forwarding Mr. Loughner's case through the appropriate channels in order to force him to receive some (obviously) badly needed mental health treatment prior to this tragedy occurring.
Hopefully such questions will be answered in due course; the victims of this tragedy, indeed, the entire nation, deserves no less. jp
Tuesday, January 11, 2011
Tucson Az. shooting tragedy draws fire to Free-Wheeling Gun laws and 'Divisive' Political Speech
Editor's note: The final installment of the impact of ipv6 implementation on internet anonymity and freedom of speech has been postponed due to breaking news of these critical current events. Our hearts and prayers go out to all victims of this terrible tragedy and their families.
Facts like that shooter Jared Loughner, and the person arrested for this heinous act, had a history of mentally questionable behavior for which he had been expelled from College; that he was politically actually more on the left side of the political scale, (see screen shot of his myspace profile here http://tpmdc.talkingpointsmemo.com/2011/01/suspected-giffords-shooter-leaves-internet-trail-video.php, citing one of his favorite books as "the Communist Manifesto"); believed in 911 conspiracy theories, (hardly a belief associated with conservatives); and that there exists no indication he committed these crimes for any overt political purpose.
Indeed, such evidence is compelling, if inconvenient, evidence that conservative "hate speech" didn't have anything to do with Mr. Loughner's actions in shooting 19 people in rapid succession outside a Safeway grocery store in Tucson, Arizona. (Of course, why bother with the evidence when you can, in the words of Rahm Emanuel, former Chief of Staff to the present Administration, "never let a crisis go to waste." Indeed, the speed and glee with which the left seemed to make their politically-charged accusations at a time when the nation should rather be focused on coming together in mourning and assistance for the victims in this tragedy is truly sickening).
Indeed, if anything it is such crass political calculations as this in the face of such a terrible national tragedy that fuels the anger of ordinary citizens and movements such as the Tea Party which was so effective for Republicans in the recent Mid-term elections. One wonders if any on the left are listening or able to put healing of the victims ahead of their own political goals and interests. For the good of the nation we at the ACLP certainly hope so. jp
As I watched and read the news in the aftermath of the shooting spree in Tucson Az this weekend by a mentally deranged man with a history of troubling behavior I couldn't help but think "I bet this will be a pretext for more regulation of the right to bear arms and political speech."
While I am no prophet, sure enough, within hours of this terrible tragedy, there were those who began calling for re-imposition of the "Brady bill" and other laws designed to restrict the rights of law abiding Americans to protect themselves and their families and blaming this tragedy on what they deigned "divisive hate speech" of the center right in American politics. (And this was so regardless of the fact that Mr. Loughner expressed no political motive for his killing spree, had a long history of behavior indicating mental illness, was not listed as a member of the oft-mentioned and presumably radical group 'American Renaissance' (which has been cited by some in the media as a possible "political" connection to "conservative" political thought), and was not even registered as a Republican but was a registered Independent who didn't even vote in the most recent Congressional elections. (So much for being motivated by "conservative" political beliefs and/or alleged divisive "hate speech" uttered by certain right-of-center talk radio and cable tv hosts whose public comments have been alleged to instigate such unspeakable acts of violence. Hmmm, isn't it funny that in 2009 we didn't initially hear anything about the radical beliefs of the Fort Hood Shooter as a possible motive for his deadly acts of violence but rather and for the most part just repeated statements that the motive for the shootings was "unclear" (see http://abcnews.go.com/WN/fort-hood-shooting-army-doctor-leaves-12-dead/story?id=9007938). This in spite of the heinous actions of U.S. army psychiatrist Nidal Malik Hasan, later acknowledged to have been communicating with radical Muslim Cleric and suspected 911 conspirator Anwar al-Awlaki and having a long history of holding pro-Islamic and rabidly anti-American sentiments, in opening fire on dozens of American soldiers preparing to depart for overseas duty on Nov. 5 2009, (for more info click here http://www.foxnews.com/us/2009/11/12/hasan-called-soldier-allah-business-cards/, here http://abcnews.go.com/Blotter/hasan-multiple-mail-accounts-officials/story?id=9065692 , and here http://www.csmonitor.com/USA/2009/1118/p02s07-usgn.html). Examination of such double standards by those in the mainstream media will however have to wait for another day as they are, alas, considerably off topic here, (though you can consider it a whetting of the appetite for a future post :)
Nevertheless, and so typical of this vein of thought (attack?) so reminiscent of the political left's use of the politics of personal destruction utilized in employing the logical fallacies of guilt by assocation and ad hominem attack in editorials from the New York Times to the Washington Post from the very beginnings of this case which repeated the same familiar refrain. Though I'm sure you know it if you are at all politically aware of have listened to (or read) any news media at all in the last 20 years, it usually goes something like this: "Political conservatives, due to their [implied] bigotry and 'hate filled' and 'divisive' rhetoric espousing distrust of big government and daring to question the wisdom of the ever-increasing expansion of the Federal government's power over society in the name of public safety, terrorism, 'internet neutrality' or ___________, (fill in the blank), are somehow to blame for this senseless act of violence and need to be restrained (and/or 'shamed') into silence."
While unclear just how those who espouse such alleged "hate filled" and "divisive" speech should be lawfully restrained, (as to do so would clearly violate the First Amendment of the Constitution which guarantees Freedom of Speech, and in particular freedom of political speech which the Founders found sancrosanct, see Federalist number ), tragedies like this inevitably provoke such emotional, knee-jerk reactions and rhetoric which, at least in our view, are neither accurate nor particularly helpful in what should properly be a time of national mourning and healing.
Therefore, while our hearts and prayers go out to Congresswomen Gifffords and indeed all the victims of this senseless tragedy, (which also included a nine year old girl and a Federal judge), we feel obliged to at least attempt a sane and reasoned response to such flourishes of blame in the hopes it might provide a more rational basis for public discourse and reaction on the part of public officials and all who hope to contribute something of value in the aftermath of this terrible national tragedy.
First of all, while the accusations of divisive "hate filled" speech by those on the political center-right we feel is way overblown, it is demonstratively false that the political right has a corner on such rhetoric, (comparisons of George W. Bush to Adolph Hitler by Michael Moore and other celebrities and statements of liberal politicians in the 2000 elections and recent political debates, as well as claims that Republicans want people who are sick to "hurry up and die," (famously uttered by Congressmen Al Grayson of Florida), want to "make seniors choose between medicine and food" and want to deny health care to small children from poor families come to mind).
Indeed, some of the easiest targets in the aftermath of the current crisis appeared to be Minnesota Congresswoman Michelle Bachman, former Republican Vice Presidential candidate Sarah Palin, and Fox news in general, who were almost immediately blamed for somehow encouraging this despicable act of violence for everything from expressing a minority viewpoint to the common practice of using "cross-hair" diagrams in political literature to indicate states and/or Congressional districts to target in Congressional mid-term elections. (In the case of this last it seems a particularly unfair attack when unions and the Democratic National Committee itself used similar "bulls eye" graphics in their literature for the same purpose!)
As for Fox news, as a political junkie who gets his news from many different sources including regular doses of Morning Joe and C-span I had to wonder how many people might actually be blinded by such demagoguery without ever having seen one Fox News program for themselves but just believing such seemingly "authoritative" and "factual" statements.
Or have we truly fallen so far in our country where we can no longer tolerate different perspectives and can so prejudge someone (or a whole tv network!) that we refuse to even first listen to anyone or anything we might think we won't agree with in the self-aggrandizing quest for our own perspective to be validated? Indee, are we that unsure of the truth of our own perspective that dissent is no longer tolerated and we can no longer be open to merely listening to those we disagree with? How different from admittedly one of the most conservative television hosts on Fox news today, Sean Hannity, regularly hosting Democratic analyst Bob Beckel on his nightly prime time show "Hannity," (and believe it or not actually agreeing with him on the damage such displays of partisanship cause to the social fabric of our democratic republic, as he did this very evening; indeed, Democratic analysts are regularly offered in the interest of balance on that "right wing" network, must be some kind of "conspiracy"! lol) How sad that such persons, maybe some even dear family or friends, might so distrust their own selves that they might substitute their own judgment for that of "experts" like Paul Krugman of the New York Times or Katie Curic without ever questioning what they are told to believe about public events and without ever once giving the "other side" a chance to explain how they see things? (Such is not "news" but propaganda, but alas, such is the state of affairs in our increasingly weak "fourth branch of government" in our body politic today... But I digress...). In any event the progressive left, aided by the mainstream media in this case has certainly seemed to play fast and loose with the facts in their rush to tar and feather their political opponents and take advantage of this tragedy to score "political points" and push their own biases and world view, (no matter how dispicable doing so is to the memory of the dead from this tragedy who aren't even buried yet, and regardless of the actual facts). Facts, "what facts?" you may ask.
As for Fox news, as a political junkie who gets his news from many different sources including regular doses of Morning Joe and C-span I had to wonder how many people might actually be blinded by such demagoguery without ever having seen one Fox News program for themselves but just believing such seemingly "authoritative" and "factual" statements.
Or have we truly fallen so far in our country where we can no longer tolerate different perspectives and can so prejudge someone (or a whole tv network!) that we refuse to even first listen to anyone or anything we might think we won't agree with in the self-aggrandizing quest for our own perspective to be validated? Indee, are we that unsure of the truth of our own perspective that dissent is no longer tolerated and we can no longer be open to merely listening to those we disagree with? How different from admittedly one of the most conservative television hosts on Fox news today, Sean Hannity, regularly hosting Democratic analyst Bob Beckel on his nightly prime time show "Hannity," (and believe it or not actually agreeing with him on the damage such displays of partisanship cause to the social fabric of our democratic republic, as he did this very evening; indeed, Democratic analysts are regularly offered in the interest of balance on that "right wing" network, must be some kind of "conspiracy"! lol) How sad that such persons, maybe some even dear family or friends, might so distrust their own selves that they might substitute their own judgment for that of "experts" like Paul Krugman of the New York Times or Katie Curic without ever questioning what they are told to believe about public events and without ever once giving the "other side" a chance to explain how they see things? (Such is not "news" but propaganda, but alas, such is the state of affairs in our increasingly weak "fourth branch of government" in our body politic today... But I digress...). In any event the progressive left, aided by the mainstream media in this case has certainly seemed to play fast and loose with the facts in their rush to tar and feather their political opponents and take advantage of this tragedy to score "political points" and push their own biases and world view, (no matter how dispicable doing so is to the memory of the dead from this tragedy who aren't even buried yet, and regardless of the actual facts). Facts, "what facts?" you may ask.
Facts like that shooter Jared Loughner, and the person arrested for this heinous act, had a history of mentally questionable behavior for which he had been expelled from College; that he was politically actually more on the left side of the political scale, (see screen shot of his myspace profile here http://tpmdc.talkingpointsmemo.com/2011/01/suspected-giffords-shooter-leaves-internet-trail-video.php, citing one of his favorite books as "the Communist Manifesto"); believed in 911 conspiracy theories, (hardly a belief associated with conservatives); and that there exists no indication he committed these crimes for any overt political purpose.
Indeed, such evidence is compelling, if inconvenient, evidence that conservative "hate speech" didn't have anything to do with Mr. Loughner's actions in shooting 19 people in rapid succession outside a Safeway grocery store in Tucson, Arizona. (Of course, why bother with the evidence when you can, in the words of Rahm Emanuel, former Chief of Staff to the present Administration, "never let a crisis go to waste." Indeed, the speed and glee with which the left seemed to make their politically-charged accusations at a time when the nation should rather be focused on coming together in mourning and assistance for the victims in this tragedy is truly sickening).
Nor has the political left in this country wasted any time in making renewed calls for stricter "gun control" or making it a federal crime to make "statements that could be perceived as a threat" to any federal public official or member of Congress, (a sweeping expansion of law that for its sheer vagueness could have a chilling effect on public speech and political discourse across the political spectrum in this country). Unbelievably, all such calls have been made in spite of the fact that there exists at present absolutely no evidence that any such laws would have made a difference in this case.
In fact, while perhaps further investigation may reveal otherwise, at present all available evidence indications that rather than "divisive" conservative "hate speech" or lax gun laws being the cause of this terrible event, to the contrary it was caused by a complete failure in the mental health system in the State of Arizona, (which under the law in Arizona in such circumstances allows for just such people as Mr. Loughner to receive free mental health treatment, if necessary involuntarily).
Indeed, in spite of warnings by professors and others who came into daily contact with Mr. Loughner of erratic and bizarre behavior, (of which there were at least half a dozen public incidents), he was somehow apparently never referred for followup by appropriate public health officials for imposition of involuntary mental health treatment, (clearly warranted here).
Buy why bother with the facts when to do otherwise can be used to help your own political agenda?
Saturday, January 8, 2011
"Net Neutrality" and Freedom of Speech in the Age of the Internet, Part Two
Hello all. I trust everyone enjoyed their holiday(s) and ate enough fruitcake, pie and the usual fare to last them another year or longer, (in light of the still bleak economic picture, rising inflation and expected draconian increases in food prices from additional government regulation perhaps quite a bit longer).
I do apologize for my delay in getting back to blogging after the holidays, but I had an important project I needed to finish up, and am now ready to get back to regular blogging.
I also have some potentially great news regarding additional media exposure, main web site development (as opposed to this blog, still in the works), and additions to our leadership team, (more on this later). For now, and as promised, in this (and following posts) I will continue to examine personal privacy in the digital age and the potentially dangerous threats to freedom of speech on the imminent horizon of our national experience in the wake of the "net neutrality" regulatory scheme just approved by the F.C.C. (among other things).
Before I begin however I would like to clarify something, (lest we receive mail from those who may be new to our work and misunderstand).
As an organization we are not always opposed to sensible government oversight. Indeed, in matters where there is a legitimate and compelling public safety interest that overshadows other public policy considerations the American Center for Law and Policy realizes there is sometimes no substitute for reasonable regulation, (say, for example, in airline maintenance or prescription medications).
However, in line with our overarching goal of maximizing individual liberty and limiting the ever-increasing invasiveness of government over all our lives, in areas of society that do not seriously and directly impact public safety and welfare, (admittedly sometimes a difficult line to draw), we unabashedly support freedom of the individual over that of the interest of "government" just for government or regulations' sake. It is this category that we feel control and/or regulation of the internet falls, for the most part, into.
With that clarification (and caveat if you will), back to the discussion at hand.
Many of the issues the F.C.C. has cited in support of the passage of the new "net neutrality" rules-- such as ISP's "throttling" of specific internet users deemed to use up too much network bandwidth caused by, say, downloading "excessive" software, videos, or the like-- are indeed real problems.
However, for those of us who believe in adhering to Free Enterprise principles for the solutions to such problems-- solutions that will at the same time preserve maximum freedom and all that is good with the internet-- passing an entirely new regulatory scheme to address the relatively minor problems that may exist is a lot like using a shotgun to kill the flies that get in the house in summertime. (You might kill the fly you're aiming at, but you might do so at the expense of a new custom made "picture window" in the wall!)
Indeed, when it comes to problems such as throttling, equal access, and even issues such as internet obscenity, (and if you don't know what that means I will, for obvious reasons, refrain from coloring in the details for you), for those of us who are more concerned with preserving maximum freedom of expression and all that is good with a system that, for all its problems, is essentially the world's first and only truly open form of interactive communication in the history of man, we see far more insidious problems than those the F.C.C.'s proffered solution "solves."
Indeed, in what may truly be a case of the "cure" is worse than the disease, regulation of the internet as a "telephone company" was apparently done in seeming oblivion to much simpler solutions.
For instance, in a truly "free enterprise" system, ISP's wouldn't want to alienate a whole block of customers, say those who use large globs of bandwidth downloading whole series of television shows or movies, (legally of course), because if they did, those very same customers could (and likely would) move to a competing company offering better service.
The point? The simple solution here, rather than regulating telephone and cable company internet providers so as to restrict their entry into the geographical "backyard" of their competitor, (as is still for the most part done with utility and telephone companies), would be to allow truly open competition among ISP's for the customers in the same geographical area.
Ideally, old geographical/ regulatory considerations would give way to those governed by the assets, willingness to risk investment, and physical infrastructure of the companies that wish to compete for customers in a given area, (a true "free enterprise" model in which consumers can only benefit by companies who, eager to steal away market share from their competitors, continually try to "outdo" each other by offering ever-better prices, quality, or selection of services).
In this kind of environment-- which, mind you, could be established without any need for freedom-limiting and innovation-stifling effects of regulation government intervention with its ever-accompanying risk of government taxation-- a company would always be afraid that, if their practices, (say on "throttling" bandwidth hogs disproportionately using their network), offended significant numbers of their customers, those customers might simply switch to another company which doesn't use such tactics, (or, better yet, even caters to the particular needs of such customers for a premium which they might gladly be willing to pay if they could be assured the level of service they desired would be provided).
In this way, then, you can see that an open and unregulated system could easily provide an efficient solution to the problem of throttling without the all the negative and "collateral damage" that additional government regulation often encompasses, (and so it is with most, if not all of the various perceived "problems" with the internet, or really most any endeavor in society).
The problem is that nowhere in the "telecommunications industry," (which the government has just now assured the internet is forever tied to), is such a truly "free enterprise" economic system allowed to exist where companies are allowed to compete in the same geographical areas, (at least not under the "telephone company" paradigm now approved).
And unfortunately, as is the nature of such things, instead of embracing change towards just such a "new" and truly "open" system that might actually allow the free enterprise system a chance to provide solutions to such "problems," government is often slow to realize the benefits of such changes and move from the status quo of what has "worked" in the past, (even it is really didn't or is no longer able to in the light of technological advances).
Of course, free enterprise solutions are not exactly "new" to our great country; indeed, they are the driving force behind the unparalleled innovation, standard of living and myriads of choices Americans have enjoyed for years in a multitude of industries, (from food brands to automobiles), but just because a good solution may appear obvious doesn't mean that government doesn't often miss the forest for the trees, (and the internet is no exception).
It is our job as citizens, with the power of the ballot box and the very freedom of speech we sometimes take for granted, to remind them of this fact. jp
I do apologize for my delay in getting back to blogging after the holidays, but I had an important project I needed to finish up, and am now ready to get back to regular blogging.
I also have some potentially great news regarding additional media exposure, main web site development (as opposed to this blog, still in the works), and additions to our leadership team, (more on this later). For now, and as promised, in this (and following posts) I will continue to examine personal privacy in the digital age and the potentially dangerous threats to freedom of speech on the imminent horizon of our national experience in the wake of the "net neutrality" regulatory scheme just approved by the F.C.C. (among other things).
Before I begin however I would like to clarify something, (lest we receive mail from those who may be new to our work and misunderstand).
As an organization we are not always opposed to sensible government oversight. Indeed, in matters where there is a legitimate and compelling public safety interest that overshadows other public policy considerations the American Center for Law and Policy realizes there is sometimes no substitute for reasonable regulation, (say, for example, in airline maintenance or prescription medications).
However, in line with our overarching goal of maximizing individual liberty and limiting the ever-increasing invasiveness of government over all our lives, in areas of society that do not seriously and directly impact public safety and welfare, (admittedly sometimes a difficult line to draw), we unabashedly support freedom of the individual over that of the interest of "government" just for government or regulations' sake. It is this category that we feel control and/or regulation of the internet falls, for the most part, into.
With that clarification (and caveat if you will), back to the discussion at hand.
Many of the issues the F.C.C. has cited in support of the passage of the new "net neutrality" rules-- such as ISP's "throttling" of specific internet users deemed to use up too much network bandwidth caused by, say, downloading "excessive" software, videos, or the like-- are indeed real problems.
However, for those of us who believe in adhering to Free Enterprise principles for the solutions to such problems-- solutions that will at the same time preserve maximum freedom and all that is good with the internet-- passing an entirely new regulatory scheme to address the relatively minor problems that may exist is a lot like using a shotgun to kill the flies that get in the house in summertime. (You might kill the fly you're aiming at, but you might do so at the expense of a new custom made "picture window" in the wall!)
Indeed, when it comes to problems such as throttling, equal access, and even issues such as internet obscenity, (and if you don't know what that means I will, for obvious reasons, refrain from coloring in the details for you), for those of us who are more concerned with preserving maximum freedom of expression and all that is good with a system that, for all its problems, is essentially the world's first and only truly open form of interactive communication in the history of man, we see far more insidious problems than those the F.C.C.'s proffered solution "solves."
Indeed, in what may truly be a case of the "cure" is worse than the disease, regulation of the internet as a "telephone company" was apparently done in seeming oblivion to much simpler solutions.
For instance, in a truly "free enterprise" system, ISP's wouldn't want to alienate a whole block of customers, say those who use large globs of bandwidth downloading whole series of television shows or movies, (legally of course), because if they did, those very same customers could (and likely would) move to a competing company offering better service.
The point? The simple solution here, rather than regulating telephone and cable company internet providers so as to restrict their entry into the geographical "backyard" of their competitor, (as is still for the most part done with utility and telephone companies), would be to allow truly open competition among ISP's for the customers in the same geographical area.
Ideally, old geographical/ regulatory considerations would give way to those governed by the assets, willingness to risk investment, and physical infrastructure of the companies that wish to compete for customers in a given area, (a true "free enterprise" model in which consumers can only benefit by companies who, eager to steal away market share from their competitors, continually try to "outdo" each other by offering ever-better prices, quality, or selection of services).
In this kind of environment-- which, mind you, could be established without any need for freedom-limiting and innovation-stifling effects of regulation government intervention with its ever-accompanying risk of government taxation-- a company would always be afraid that, if their practices, (say on "throttling" bandwidth hogs disproportionately using their network), offended significant numbers of their customers, those customers might simply switch to another company which doesn't use such tactics, (or, better yet, even caters to the particular needs of such customers for a premium which they might gladly be willing to pay if they could be assured the level of service they desired would be provided).
In this way, then, you can see that an open and unregulated system could easily provide an efficient solution to the problem of throttling without the all the negative and "collateral damage" that additional government regulation often encompasses, (and so it is with most, if not all of the various perceived "problems" with the internet, or really most any endeavor in society).
The problem is that nowhere in the "telecommunications industry," (which the government has just now assured the internet is forever tied to), is such a truly "free enterprise" economic system allowed to exist where companies are allowed to compete in the same geographical areas, (at least not under the "telephone company" paradigm now approved).
And unfortunately, as is the nature of such things, instead of embracing change towards just such a "new" and truly "open" system that might actually allow the free enterprise system a chance to provide solutions to such "problems," government is often slow to realize the benefits of such changes and move from the status quo of what has "worked" in the past, (even it is really didn't or is no longer able to in the light of technological advances).
Of course, free enterprise solutions are not exactly "new" to our great country; indeed, they are the driving force behind the unparalleled innovation, standard of living and myriads of choices Americans have enjoyed for years in a multitude of industries, (from food brands to automobiles), but just because a good solution may appear obvious doesn't mean that government doesn't often miss the forest for the trees, (and the internet is no exception).
It is our job as citizens, with the power of the ballot box and the very freedom of speech we sometimes take for granted, to remind them of this fact. jp
Friday, December 24, 2010
Expansion of government regulation over internet raises censorship, privacy concerns
In a further victory for the Obama Administration's long term goal of more government oversight over the internet, the Federal Communications Commission voted Tuesday to impose regulatory control over the sprawling worldwide communication network begun by the Department of defense with a 3-2 party line decision in order to impose so called "net neutrality" rules.
In spite of the administration's assurances that "net neutrality" would preserve the free exchange of ideas and vibrant competition that have become the hallmark of this critical "information superhighway" on which millions of individuals and untold organizations have come to depend for everything from intra-company communication to comparison shopping to political debate and discourse, critics worried that the action might hamper one of the country's few bastions of consistent economic growth at a time when the country can least afford it and set alarm bells ringing for many civil libertarians who feel the very nature of the internet as a free and unbridled medium for exchange of ideas could be at risk.
Indeed, at least for those civil libertarians among us concerned about individual privacy and civil liberties who choose to trust their own judgment and that of the American people rather than bureaucrats in Washington this is just one more step along the road to surfdom and the eventual complete tracking and control by the government of every single aspect of our lives, including everything we say and do online.
Admittedly, the line is not always clear between sound policy in order to advance legitimate public interests and an overarching federal government that seemingly knows no bounds in its efforts to "save us from ourselves."
But coming on the heels of a seeming abandonment by the new FCC Chief of rules that just a few months ago were being considered that would have allowed individuals to "opt out" of invasive marketing by companies that track and compile the browsing habits of internet users without their explicit consent it is indeed worrisome to see the present Administration's FCC appointees so quickly turn in a direction so starkly in contrast to Congress' and the Bush Administration's previously settled hands-off policy perhaps best exemplified in the adage "if it aint broke don't fix it."
From a legal perspective, undergirding this change is the move from the Bush Administration's classification of the internet as "information services" to the Obama administration's view of internet service providers as synonymous with turn-of-the-century telephone companies and which, at least in their view, should be regulated in much the same way.
The problem with that of course is regulation of the telephone industry arose at a time when the internet, blackberries, and cell phones were non-existent (except perhaps in the minds of science fiction writers!), and in an age in which the monopolization of power in just one or a very few telephone companies was the rule rather than the exception, (does the name "Ma Bell" or the old "American Telephone and Telegraph" ring any bells? pun intended!). Such a "one size fits all" regulatory regime may have been justified when a cohesive set of rules, applicable to just one or two telephone companies, were employed to correct a tendency away from competition and consumer choice.
Not so today when there is healthy competition in the ISP sphere and literally hundreds of choices available to consumers, with more arising everyday. Oh, sure, there are the "big three," the new ATT, Verizon, and Sprint, but it is the very level of (low) regulation and open nature of the internet which today drives innovation and consumer choice. Seriously, does anyone really believe that if the government had imposed restrictions and regulation on the nascent internet industry when it was just getting started we would have anything like what we have today in the choices of broad band, cell, dial up, and wireless providers?
In just the last couple years we have witnessed a veritable explosion in increased access to the internet among all socio-economic classes, (witness public library internet access and once paid but now free wireless "hotspots" in numerous Starbucks, Barnes and Noble and Borders bookstores, and even McDonalds!)
And while it is plausible that it is the government's interest in such matters is contained to merely taxing what has become a huge source of economic activity, (as if that weren't bad enough!) it is the alternative explanation and the impact upon every individual's privacy that government regulation could effect upon freedom of speech that is most troublesome (and if you don't think any modern government could or would attempt to "control" the internet to stifle dissent and/or harass and track political "outsiders" who don't "toe the party line" just look at China).
True, China is a communist country and we have a Constitution which has guaranteed our basic freedoms, including the right to freedom of speech, for over two hundred years. But as any historian can tell you, equally free and strong civilizations have fallen; indeed, as another has said, "the price of freedom is eternal vigilance."
Moreover, the "net neutrality" regulations are not the only threat on the horizon of free speech. Next time I will go into more detail on other policies and potential threats that have the ability to be abused and/or utilized to "chill" free speech and even possibly intimidate and/or "track" people whose political views may not always be the most popular with the powers that be. I will tell you all about it the next post. jp
In spite of the administration's assurances that "net neutrality" would preserve the free exchange of ideas and vibrant competition that have become the hallmark of this critical "information superhighway" on which millions of individuals and untold organizations have come to depend for everything from intra-company communication to comparison shopping to political debate and discourse, critics worried that the action might hamper one of the country's few bastions of consistent economic growth at a time when the country can least afford it and set alarm bells ringing for many civil libertarians who feel the very nature of the internet as a free and unbridled medium for exchange of ideas could be at risk.
Indeed, at least for those civil libertarians among us concerned about individual privacy and civil liberties who choose to trust their own judgment and that of the American people rather than bureaucrats in Washington this is just one more step along the road to surfdom and the eventual complete tracking and control by the government of every single aspect of our lives, including everything we say and do online.
Admittedly, the line is not always clear between sound policy in order to advance legitimate public interests and an overarching federal government that seemingly knows no bounds in its efforts to "save us from ourselves."
But coming on the heels of a seeming abandonment by the new FCC Chief of rules that just a few months ago were being considered that would have allowed individuals to "opt out" of invasive marketing by companies that track and compile the browsing habits of internet users without their explicit consent it is indeed worrisome to see the present Administration's FCC appointees so quickly turn in a direction so starkly in contrast to Congress' and the Bush Administration's previously settled hands-off policy perhaps best exemplified in the adage "if it aint broke don't fix it."
From a legal perspective, undergirding this change is the move from the Bush Administration's classification of the internet as "information services" to the Obama administration's view of internet service providers as synonymous with turn-of-the-century telephone companies and which, at least in their view, should be regulated in much the same way.
The problem with that of course is regulation of the telephone industry arose at a time when the internet, blackberries, and cell phones were non-existent (except perhaps in the minds of science fiction writers!), and in an age in which the monopolization of power in just one or a very few telephone companies was the rule rather than the exception, (does the name "Ma Bell" or the old "American Telephone and Telegraph" ring any bells? pun intended!). Such a "one size fits all" regulatory regime may have been justified when a cohesive set of rules, applicable to just one or two telephone companies, were employed to correct a tendency away from competition and consumer choice.
Not so today when there is healthy competition in the ISP sphere and literally hundreds of choices available to consumers, with more arising everyday. Oh, sure, there are the "big three," the new ATT, Verizon, and Sprint, but it is the very level of (low) regulation and open nature of the internet which today drives innovation and consumer choice. Seriously, does anyone really believe that if the government had imposed restrictions and regulation on the nascent internet industry when it was just getting started we would have anything like what we have today in the choices of broad band, cell, dial up, and wireless providers?
In just the last couple years we have witnessed a veritable explosion in increased access to the internet among all socio-economic classes, (witness public library internet access and once paid but now free wireless "hotspots" in numerous Starbucks, Barnes and Noble and Borders bookstores, and even McDonalds!)
And while it is plausible that it is the government's interest in such matters is contained to merely taxing what has become a huge source of economic activity, (as if that weren't bad enough!) it is the alternative explanation and the impact upon every individual's privacy that government regulation could effect upon freedom of speech that is most troublesome (and if you don't think any modern government could or would attempt to "control" the internet to stifle dissent and/or harass and track political "outsiders" who don't "toe the party line" just look at China).
True, China is a communist country and we have a Constitution which has guaranteed our basic freedoms, including the right to freedom of speech, for over two hundred years. But as any historian can tell you, equally free and strong civilizations have fallen; indeed, as another has said, "the price of freedom is eternal vigilance."
Moreover, the "net neutrality" regulations are not the only threat on the horizon of free speech. Next time I will go into more detail on other policies and potential threats that have the ability to be abused and/or utilized to "chill" free speech and even possibly intimidate and/or "track" people whose political views may not always be the most popular with the powers that be. I will tell you all about it the next post. jp
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