Reason Magazine - Staff > Hanah Metchis

Induce Vomiting

info@reason.com (Hanah Metchis) — Wed, 01 Dec 2004 00:00:00 EST

Last year a U.S. district court in Los Angeles held that Grokster, a peer-to-peer file sharing network, could not be held responsible for copyright infringements by its users. Since then, the Recording Industry Association of America has been suing individual downloaders rather than companies, but the entertainment industry is still itching to shut down file trading networks at the source. Their latest attempt is the Inducing Infringement of Copyrights Act, sponsored by Sen. Orrin Hatch (R-Utah), which would make it illegal to "intentionally induce" copyright violation.

With such vague, broad language, the bill endangers not just file sharing networks but many other technologies as well. To illustrate the legislation's reach, the Electronic Frontier Foundation has produced a sample legal complaint targeting Apple (for creating and marketing the iPod), the webzine CNET (for explaining how to use it), and Toshiba (for providing the hard drives).

The potential wrath of consumers probably would prevent an actual lawsuit against the iPod, but the possibility of legal action could stifle innovation. If Hatch's bill had been law in 2001, would Apple have been willing to take the risk of introducing the iPod? Or of promoting the iMac with the "Rip. Mix. Burn." campaign?

Widespread public criticism has prompted the Senate Judiciary Committee to consider revisions to the bill. At press time, the affected parties have not been able to agree on new language for the legislation. It's not dead yet, though, and technology companies and civil liberties groups remain wary.

Secession Fever

info@reason.com (Hanah Metchis) — Mon, 01 Nov 2004 00:00:00 EST

Residents of Killington, a ski town in Vermont, were so mad about their high state taxes that in March they approved a plan to secede from the state and join neighboring New Hampshire. Now other towns want to flee Vermont as well, and they're asking Killington officials for ad-vice. Dorset, Ludlow, and Manchester have already held town meetings to learn about secession; other towns may follow.

David Lewis, town manager of Killington, says the state of Vermont is bleeding the resort towns dry to benefit less prosperous towns. Killington residents pay $10 million in property taxes but receive only $1 million from the state government. Dorset pays $7 million and gets back $3.6 million.

After a town passes a secession plan, the move must be approved by the legislatures and governors of both states and by the U.S. Congress. "The odds are not with us," Lewis admits. "But just because something is a long shot does not mean that you don't do it." Killington has drafted a bill for secession and will introduce it to the legislature soon.

Judge, Jury, and Cop

info@reason.com (Hanah Metchis) — Mon, 01 Nov 2004 00:00:00 EST

Since 1996 the U.S. Border Patrol's "expedited removal" procedure has allowed it to ship illegal immigrants home from airports and seaports without a hearing before an immigration judge. Now this power is being expanded to cover people crossing at the borders with Mexico and Canada.

Bill Strassberger, a spokesman for the Department of Homeland Security, which runs the Border Patrol, says deportation procedures that could take up to 12 months in the past can be processed in just a few days under the new policy. Many illegal immigrants are confined for months in detention centers while awaiting their court dates. "It's an effective use of the resources to enforce the immigrations laws of the country," he argues. "At the same time, we are protecting the rights of those persons who are seeking protection in the United States."

But Eleanor Acer, director of the asylum program at Human Rights First, says the expedited process cannot adequately protect the rights of asylum seekers. "It's destined to fail," she says. "It has no meaningful safeguards. This change gives border patrol officers the power to act like judges." In 2000 her group published "Is This America?," a study of expedited deportation in U.S. airports that cited many abuses as well as mistaken deportations of asylum seekers, businesspeople, and American citizens.

Subway Searches

info@reason.com (Hanah Metchis) — Mon, 01 Nov 2004 00:00:00 EST

Most people are resigned to being searched every time they enter an airport. Now baggage searches are spreading to light rail, subways, and buses. Just before the opening of the Democratic National Convention in Boston, the Massachusetts Bay Transit Authority (MBTA) introduced a new security policy: All carry-on bags are now subject to search. The policy remained in place even after the convention was over.

The bags of randomly chosen passengers entering a station are swabbed with a chemical-sensing cloth, which is inserted into a machine. If the machine reports a positive result, in come the bomb-sniffing dogs.

The National Lawyers Guild and the American-Arab Anti-Discrimination Committee have sued to stop the new policy. Lawyers Guild President Michael Avery argues that the searches are too intrusive, especially given that the policy was not prompted by any specific threat. "Law enforcement has only the vaguest, most general, speculative information," he says. "And I just don't think that kind of information is enough to compromise the privacy and freedom of everyday life."

Other cities are watching the case closely. "Virtually every other transit system in America has contacted us for information" about the new policy, according to MBTA Deputy Police Chief Tom McCarthy. On the other hand, none of the three major transit systems near the site of the Republican National Convention in New York --
MTA, New Jersey Transit, and Amtrak -- searched carry-on bags as part of their heightened security measures.

Cleaning Up E-Mail

info@reason.com (Hanah Metchis) — Fri, 01 Oct 2004 00:00:00 EDT

Thanks to the ingenious CAN-SPAM Act passed by Congress last year, junk e-mail in the United States has been drastically reduced, rendering many inboxes completely spam free.

Just kidding. Despite the new law, spam continues to increase, and recent studies by makers of anti-spam software found that less than 10 percent of junk e-mail complies with CAN-SPAM.

Fortunately, Congress isn't the only group working on the spam problem. The Anti-Spam Technical Alliance (ASTA) is a coalition of some of the largest e-mail providers on the Internet, including Microsoft, AOL, Yahoo!, and Earthlink. In late June it published some proposals designed to slow the onslaught.

Most of the recommendations consist of practices the alliance hopes Internet providers will adopt voluntarily, such as closing mail servers to nonsubscribers and limiting the number of messages per day each user can send. But the most promising suggestion is the anti-forgery technology ASTA members are developing.

The SMTP protocol, used for sending and receiving e-mail, has no built-in way to authenticate senders. Spammers use this weakness to hide their identities and send mail that looks like it's coming from somewhere else. CAN-SPAM makes this illegal, but the law is almost universally ignored. ASTA hopes to create methods to digitally sign content and make this kind of "spoofing" not just illegal but technologically impossible.

If that works, it might finally be possible to make some headway in the battle against junk e-mail.

Backdoor Censorship

info@reason.com (Hanah Metchis) — Thu, 26 Aug 2004 00:00:00 EDT

Irwin Schiff believes the income tax is unconstitutional. He believes it so strongly that he's built a whole business out of promoting his theories. He's written books and lectures, and teaches seminars about how to pay zero taxes. The IRS, unsurprisingly, takes a dim view of this. Schiff is currently being prosecuted for tax evasion. The court has also issued an injunction that prohibits the sale of Schiff's book, The Federal Mafia: How the Government Illegally Imposes and Unlawfully Collects Income Taxes. Earlier this month, the 9th Circuit upheld the injunction on appeal. Schiff claimed that the prohibition violated his right to free speech, since the book is primarily a political and historical argument. The court disagreed, saying that the book is commercial speech.

Commercial speech has historically been granted fewer protections than other kinds of speech. In particular, fraudulent and misleading advertising is illegal, whereas there is no law against false or misleading political speech. Anyone who wants to can argue, "Income tax is illegal" or "The end of the world is upon us" or "Property is theft," regardless of the merit of those beliefs. On the other hand, if a manufacturer claims his chocolate is fat-free when it really isn't, he's in for some heavy fines.

The line between commercial and noncommercial speech, however, is anything but clear. Many publications have a commercial component along with a political, religious, or artistic component. A movie with product placements for Pepsi and Domino's pizza surely should not lose its status as artistic speech. Even a clever TV ad for Pepsi or a cutting-edge music video—each designed primarily to sell a product—can strike the viewer as being a work of art, not just a commercial advertisement.

The Federal Mafia is a political tract explaining Schiff's views about United States tax law. Along with his legal theories, he alerts the reader to his other products, which are designed to help people apply his theories to their own tax returns. As Judge Procter Hug Jr., writing the majority opinion, points out, "Schiff can relate his long history with the IRS and explain his unorthodox tax theories without simultaneously urging his readers to buy his products." That may well be true. But in banning the book, the opinion does not make clear which portions of the book constitute commercial speech and which would be protected if published separately. Surprisingly, no material from The Federal Mafia itself is quoted in the opinion to establish that it contains commercial speech. Instead, the opinion quotes "inserts" from the book, which presumably could be easily removed, and advertising of the book itself from Schiff's website and the cover of the book.

Based on the fact that The Federal Mafia is advertised and sold together with Schiff's other products, the judge claims that the book plays an "integral part...in Schiff's whole financial program" and thus is commercial speech. Unfortunately for free speech believers, a huge number of books take part in this soft form of advertising. Science fiction paperbacks with order forms at the back, astrology books that advertise personalized readings, even any book with a list of other books by the same author could be seen as commercial speech under such a broad interpretation. Allen Lichtenstein, general counsel of the ACLU of Nevada, which filed an amicus brief in the case, says the expansive definition of commercial speech in the ruling "opens a Pandora's box for the government to decide what theories are correct and what theories are incorrect." Any publication that a court decides is false and that is packaged with any kind of advertisement could be banned. This could open a huge backdoor for censorship.

The courts have said that regulating commercial speech is unproblematic because commercial messages are not important in the way that political, religious, and artistic speech is. But commercial speech can be critical to decision making in a free-market economy, just as political speech is critical to decision making in a democracy. Even more important, an expansive power to regulate and ban commercial speech could erase many of the protections we take for granted. In our society, speech has a commercial component more often than not. Irwin Schiff's beliefs about the legality of the income tax may in fact be wrong and dangerous to others, but taking away his right to advertise those beliefs is even more dangerous.

Downloading Laws

info@reason.com (Hanah Metchis) — Wed, 11 Aug 2004 00:00:00 EDT

A few short years ago, technology enthusiasts used to claim that technology moves too fast for the law to hold it back. Those predictions turn out to be overly optimistic. In fact, lawmakers trying to put a stop to one evil are likely to create dozens more with legislation about a field they don't fully understand. Vague language designed to catch potential technological workarounds can put a stop to innovation in completely unrelated areas.

The latest example of this dangerous mix of law and technology is the Induce Act, sponsored by Sen. Orrin Hatch. Its intent—to stop downloading of copyrighted material by making peer-to-peer file trading networks illegal—is bad enough. P2P networks have legitimate uses, like the distribution of taped Senate hearings. But the language of Hatch's bill is so open-ended that many other electronic devices, from the iPod to TiVo to email-to-RSS converters, would be called into question.

The Induce Act, also known as the IICA, says that anyone who "intentionally aids, abets, induces, or procures" a copyright violation can be sued for copyright infringement. That surely applies to the file trading networks, which make it easy to find and download a free copy of any song you desire. Apple's iPod could also come under fire for its huge hard drive, which would cost about $10,000 to fill with legally downloaded music. The Electronic Frontier Foundation has prepared a sample complaint against the iPod, pointing out the dangers of the Induce Act against established, respectable companies and technologies.

Others have gone even farther in pointing out the absurdities that could result from an expansive reading of the Induce Act. Tech blogger Ernest Miller is keeping track of an Induce Act "Hit List", pointing out products and companies that might be seen to "induce" copyright infringement. Among the everyday companies on Miller's list are The New York Times, which in a recent article "painted a romantic picture of copyright infringers who violate the public performance right for films," and Lego, which lets users upload pictures to create a Lego mosaic template. One commenter even joked that the manufacturers of Silly Putty could be liable for promoting the gooey toy's ability to lift an impression off a printed page.

The Induce Act would have a definite chilling effect on technological innovation. Even if judges are not inclined to interpret it broadly, the vague language opens the door to harassing lawsuits. Companies creating multipurpose technologies would have to be prepared to defend themselves against copyright infringement allegations. To avoid that, the Business Software Alliance has proposed changes to the bill, including a limit on frivolous lawsuits and a provision for products with legitimate commercial purposes to be exempted from liability. The latter would reaffirm the Supreme Court's 1984 Betamax decision which held that the VCR maker was not responsible for copyright infringement by its customers.

Faced with so many unintended consequences, Congress needs to consider whether this solution to copyright infringement is worse than the original problem. Digital content distribution is still in its infancy, but iTunes and other legal download services are growing in popularity. The digital music landscape could change next year, or even next month, in ways that the Induce Act would be unprepared to deal with. The law can undoubtedly cut off some avenues of technological innovation. But at the same time, the tech lovers of 1999 are right—the law cannot anticipate where technology will turn next. In the worst case scenario, a bad tech law could be simultaneously stifling and irrelevant.

Trademarks Targeted

info@reason.com (Hanah Metchis) — Fri, 23 Jul 2004 00:00:00 EDT

The sale of targeted advertising is one of the few business models that actually works on the Internet. Google has been an industry leader in creating ways to display relevant, unobtrusive advertising along with search results. Now, Google is at the center of a crop of lawsuits trying to block targeted ads based on trademarked keywords.

In targeted advertising, ads are chosen for display based on keywords the user has typed in to search. For example, a user who searches for "car insurance" on Google might see ads for Geico, Progressive Insurance, and Planet Insurance. But not all search terms are created equal. If a user enters "Geico" in the search box, she might be looking for the specific company, or she might want to shop around. Should Planet Insurance be allowed to advertise on the search results page even though Geico is a trademarked company name? Google says yes.

The lawyers at Geico believe this is a form of trademark infringement, and they're suing Google to get the ads removed. Another case has been filed by American Blind and Wallpaper Factory, a company whose name, unlike Geico's, is made up of common English words. A similar suit filed by Playboy against Netscape over the sale of ads for the keywords "playboy" and "playmate" was settled earlier this year.

American law is quite fuzzy on this type of trademark use. To win a trademark infringement suit, the trademark owner has to prove that the use of the trademark causes confusion for consumers. This usually means that people buy one product because they think it is the other product. Geico could very easily win a case against an insurance company calling itself Geiko, using a similar logo, and showing a picture of a lizard in its advertising.

In the search engine cases, however, there is little confusion. Paid ads on Google are displayed in a separate section from the actual search results, and the name and URL of each advertised site is shown. If Internet users mistakenly think an ad is from the searched-for company despite all this, it is obvious once the user clicks through that the site is selling a different product. A determined customer would return to the search results page and try again. Nonetheless, Geico and the other companies claim that if a customer clicks on an ad thinking it is sponsored by the company he searched for, this "initial interest confusion" is enough to constitute a trademark violation. If a consumer is enticed into buying from a different company than he originally intended, they argue, damage has been done.

In the offline world, different products and brands are displayed together all the time. A grocer might place Post Raisin Bran on the shelf next to Kellogg's Raisin Bran. Radio Shack puts several brands of cell phones and their calling plans in the same display case. Targeted ads have an even closer equivalent in grocery store coupons. When a customer buys Dannon yogurt, a coupon might print for Yoplait yogurt—or for more Dannon yogurt, depending on which company bought the ad.

A determined company can even design its website to attract a higher priority in the regular search without buying ad space. Companies can mention their competitors' names in their ads as long as they do not make false claims. A candy company could create a website with the title "Hershey's Kisses Have More Fat Than Joe's Chocolate Candies" and reap the benefits of being listed near the top in a search for "Hershey's Kisses". In fact, a whole specialization in search engine optimization has sprung up in the field of online marketing.

Geico might wish to be the only company in sight when a user searches for its name. But in the reality of the Internet, users are looking for all kinds of different things when they search—and they find them. A Google search for Geico currently returns the company's website first in the regular, non-paid search results, but that is followed by reviews, insurance price comparison services, government-provided information reports, and several stories about the lawsuit that is the topic of this article—all of which could potentially steer a customer away from Geico.

The benefit of the Internet is that it makes more information easily accessible than has ever been available before. Trademark protection is important, since consumers should be able to recognize brands without confusion. But just as copyright should not be used to restrict consumer freedom, trademark should not be used to restrict consumer choice. Search engines should help users find what they're looking for, but they should also help users find what is useful and unexpected.

Judge Not

info@reason.com (Hanah Metchis) — Tue, 13 Jul 2004 00:00:00 EDT

In March of last year, Dwight W. Watson, a tobacco farmer, drove a tractor into a pond on the National Mall and threatened to blow it up. It turned out he didn't have any explosives, but the standoff paralyzed sections of Washington, D.C. for two days before he surrendered. A jury convicted Watson of making threats and damaging federal parkland, for which the federal sentencing guidelines dictate a 16 month prison term.

The judge in the case, however, agreed with prosecutors that Watson had caused "havoc and fear" in the city. The federal sentencing guidelines call for increases in punishment on these kinds of sentencing factors. Watson's sentence was increased from 16 months to 6 years.

Today, Dwight Watson is a free man. The Supreme Court ruled a few weeks ago in Blakely v. Washington that the sentencing guidelines of Washington State violate the right to a jury trial because they let a judge find aggravating factors when the facts have not been presented to a jury. Though Blakely only directly applies to the state of Washington, the federal sentencing guidelines and guidelines in several other states have been called into question.

In the resulting chaos, judges, prosecutors, and Congress are trying to find a new set of rules for sentencing. Criminals are sentenced in federal courts every day, and the Blakely ruling throws hundreds of thousands of recent and in-progress sentences into confusion.

There are three basic sentencing systems that might emerge. First, the guidelines might be used only based on facts admitted by the defendant in a guilty plea or found by the jury, as the judge in Watson's case decided. Second, the guidelines could be abandoned completely, which would bring a return to judicial discretion in sentencing. Or third, the guidelines could be dropped from their current mandatory status to simple recommendations on sentencing for judges. In fact, all of these are happening now, as judges grapple with interpretations of the Blakely decision.

It does seem unfair to increase a convicted criminal's sentence based on information never presented to the jury or, even worse, based on counts on which the jury specifically acquitted the defendant. Constraining judges strictly to proved factors under the sentencing guidelines is causing a lot of leniency right now, but only for cases that were already in progress when Blakely was decided. Federal prosecutors are now asking plea-bargaining defendants to sign a waiver giving up their rights under Blakely and related cases. According to a Department of Justice memo, prosecutors will now be including all aggravating factors directly in the indictment. Juries can also be given a checklist of factors to rule on in the sentencing phase of a trial, to make sure all of the possibilities in the sentencing guidelines are accounted for. After a short adjustment period, there will be no more cases like U.S. v. Shamblin, in which a drug trafficker's sentence was reduced from twenty years to just one.

There is a reasonable argument to be made that the guidelines are meant to be taken as a whole, and cannot be dismantled to allow judges downward departures from a sentence but not upward departures. Why should a judge be allowed to shave six months off a sentence because the criminal shows regret for his actions, but be forbidden to add six months to a sentence because the criminal caused fear in his victim? If some factors can be considered (mitigating ones) but others can't (aggravating ones), sentences are bound to be more lenient than Congress and the Sentencing Commission intended. Justice O'Connor, predicting the downfall of the federal guidelines in her dissent in Blakely, writes, "Congress and States...will either trim or eliminate altogether their sentencing guidelines schemes and, with them, 20 years of sentencing reform."

Indeed, some judges have declared that they will no longer view the guidelines as mandatory at all. Most notably, Judge Cassell stated in a Utah case, U.S. v. Croxford, that he will now decide sentences at his own discretion between the statutory minimum and maximum penalties, but he will use the federal guidelines as recommendations.

Legally, there is no difference between trashing the guidelines entirely and keeping them on in an advisory role. Nonetheless, some experts believe non-mandatory guidelines are the best option. Erik Luna, Associate Professor of Law at the University of Utah, says, "The goal is to have guidelines that guide. To have a common law system whereby the interaction between judges and appellate courts would determine what factors are appropriate to use in giving a sentence."

The Supreme Court will almost certainly hear a case challenging the federal guidelines very soon. Congress will want to weigh in on the decision as well, though whether they will change the structure of the guidelines, change the procedures for applying them, or repeal them altogether is still up in the air. Federal sentencing might become more arbitrary, or it could end up better than it's been. In the meantime, a lot of people behind bars are calling their lawyers.

Inside-Out

info@reason.com (Hanah Metchis) — Wed, 23 Jun 2004 00:00:00 EDT

Sometimes a little bit of information can be worse than no information at all. But is that really true when the information is about your own health? The Food and Drug Administration and the American Medical Association think it's dangerous and inconvenient for patients to look inside their own bodies on their own initiative and at their own expense.

CT (or CAT) scans and X-rays have become standard medical diagnostic tools. These non-invasive body scans are prescribed routinely by doctors to look inside a patient's body and discover what is causing symptoms from headaches to chest pains. This body scanning technology has become so well known, easily available, and inexpensive that some clinics are offering preemptive screening exams for people without any specific symptoms at all—and advertising directly to the consumer.

Companies like Heart Check America and LifeScore offer patients direct access to medical scanning procedures. They do not require a doctor's prescription, and usually do not provide detailed analysis or consultation about the results of the scan. The patient gets a copy of the scan results, which he can take to his own doctor if abnormalities are found. Patients are drawn to the clinics by the possibility of stopping a life-threatening illness before symptoms are even felt, and by the peace of mind that a scan with no abnormalities can bring.

The FDA and AMA are outraged by this. They argue that CT scans have not been proven to be effective as screening tests—that normal results don't equal perfect health and abnormal results can cause a lot of worry over something that turns out not to be serious. And they worry that people will use body scans as a substitute for regular medical care.

Americans are savvy enough to know that a high-tech scan is no substitute for the personal care of a family doctor. And people willing to spend hundreds of dollars of their own money to check their health from the inside out are not likely to skimp on a visit to the doctor that is paid for by insurance. Instead, these patients are not satisfied with the passive role that traditional medical practices has scripted for them. They want to take control of their health situation, and now technology and the free market are providing that opportunity.

Pregnant women want to peek under their skin for non-medical reasons, too. In recent years, "keepsake" ultrasound photo clinics such as Fetal Fotos have sprung up in shopping centers around the nation. These clinics can take 3D pictures and videos of babies-to-be that are much more viewer-friendly than the fuzzy 2D ultrasound pictures obstetricians are specially trained to analyze.

Prenatal ultrasound has been around for decades, and is safely used to check a baby's gender and spot possible birth defects. Better pictures mean higher exposure to ultrasound for a longer time than routine medical checkups, but even the FDA admits that there is no evidence that ultrasound can physically harm a fetus. Nonetheless, the medical nannies at FDA caution against the use of ultrasound for "medically unnecessary" purposes.

Once a medical device is approved, the FDA cannot regulate how doctors use the device, so access to body scans and prenatal ultrasound is not likely to be restricted outright. Yet the battle for consumer control of medical choices is raging on many grounds, from high-tech scans to contact lenses to contraception. With so much information readily available about the benefits and risks of medical procedures and devices, consumers are increasingly likely to have their own opinions about what is best for them. Doctors, and the government, need to adjust to that new reality.