Secrets Don't Make Friends

With nearly every news media outlet gorging at the "healthcare debate" trough, it's easy to forget that Congress is in fact working on other legislative initiatives wholly unrelated to healthcare. One such piece of legislation is H.R. 984: State Secret Protection Act of 2009. With a name like, 'State Secret Protection Act of 2009,' it has to be good! The legislation, sponsored by Rep. Jerry Nadler of New York, was approved by the House Judiciary Committee last Friday.

The bill aims to curb the abuse of the state secrets privilege, which has been embraced by the Obama DOJ (following W. Bush's lead) as the best method of never having to answer questions about constitutionally suspect executive policies/actions. Salon.com's Glen Greenwald has a post that includes a radio interview with the bill's sponsor, Rep. Nadler. According to Rep. Nadler, both George W. Bush, and Barack Obama blazed new trails with respect to the abuse of the states secrets privilege. First, the frequency with which the privilege was invoked in suits against the government skyrocketed during the Bush administration. Then, the doctrine saw a transformation in the manner with which is was (and continues to be) applied. According to Rep. Nadler, the privilege was initially designed as an evidentiary privilege that would protect sensitive documents and other types of evidence.

That application has since been surpassed in the Bush and Obama administrations. Now, instead of simply protecting a single, or group, of documents/evidence, the executive has successfully argued that the privilege applies to subject matter. This transformation greatly expanded the scope of the privilege and permits the executive to punt a suit at the pleading stage, effectively barring citizens from seeking redress in the courts. It's hard not to see the problems with this approach to the privilege.

The State Secrets Act of 2009 would help to return the state secrets privilege to its traditional moorings as an evidentiary privilege. It provides safeguards in order that legitimately sensitive materials are protected, while also ensuring that citizens have access to the courts for redress. On its face, it would seem to satisfy both the needs of national security and the maintenance of the courts as a check on executive power. Unfortunately, as (recent)history poignantly demonstrates, once power is granted, it's a bitch to take it away.

Something Else for Glenn to Cry About

Towards the end of September, Murphy wrote about Glenn Beck filing a complaint with WIPO over a contested domain name that he claimed violated his trademark in his own name. The website, didglennbeckrapeandmurderayounggirlin1990.com, was conceived as a satire of Beck's own proclivity for inventing outrageous and baseless accusations and confronting the target with said accusations, thereby forcing someone to explain or defend against purely fictional claims. For instance, "There are people out there who claim that Murphy is a communist. Now, let's be clear, I'm not saying that Murphy is a communist. However, if Murphy has nothing to hide, why doesn't she just come out with the information to prove that she is not a communist and put this whole thing to rest?" For a real world analogy, see the Birther "movement".

Thankfully, we can chalk up a victory for the forces of good, and revel in a defeat for the forces of nutbaggery. The WIPO arbitration panel decided (.pdf) in favor of the respondent noting:

"Respondent appears to the Panel to be engaged in a parody of the style or methodology that Respondent appears genuinely to believe is employed by Complainant in the provision of political commentary, and for that reason Respondent can be said to be making a political statement. This constitutes a legitimate non-commercial use of Complainant's mark under the Policy."

Following announcement of the victory Isaac Eiland-Hall, respondent and domain-owner, issued a letter to Beck, ceding control of the domain and admonishing Beck for his hatred of Constitutional liberties.

Col. Mustard in the Office with the P2P

Copyright issues have been a frequent topic of Murphy's posts. We return to this theme today. An article. from ars discusses the multiple and varied voices that have spoken out to debunk the myth, propogated by Big Content, that P2P is the singular cause of decreasing revenues and job loss in the music industry. That this myth is a load of malarkey has been effectively demonstrated by likes such as Lawrence Lessig and EFF. However, the ars article expands the typical circle of P2P-as-Bogeyman skeptics to include officials from the EU and even longtime members of the music industry.

These new critics essentially rehash what has already been committed to paper by Lessig: primarily that the growth of P2P was not a product of rejecting the content industry wholesale, but rather a response to the failure of Big Content to give the consumer what she wanted. Certainly, there are always going to be individuals who want something for nothing. Piracy in some form or another has been a part of human societies going back to the beginning. However, pirates form a small minority of the consuming public. Most consumers wish to support artists and understand that paying for content helps to accomplish that end. The rise of P2P did not signal any sort of move away from this desire. Rather, it signalled frustration with the reactionary policies initiated by Big Content to tighten restrictions on what consumers could do with purchased content.