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| March 2004 | Volume LIII | No. 2 | |||||||||||||||||||||||||||||||||||||||
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Chicago, Illinois | Oceanport, New Jersey | Grand Canyon, Arizona | Washington, D.C., see also (b), (c), (d), (e), (f) | Philadelphia, Pennsylvania, see also (b) | Detroit, Michigan
Chicago, IllinoisThe Cook Memorial Public Library boardís ethics policy is being blasted by two library trustees who say the document stifles free speech. Board allies Jack L. Martin and Tom Forester, who regularly clash with other members, voted in late January against renewing the guidelines. They said the policy can be used to improperly control board membersí actions and opinions or to punish trustees who speak out against board decisions. ìItís a tyranny of the majority,î Forester said. ìA library is supposed to stand for free speech. This denigrates it.î Martin called the policy a gag order. ìIíve got a constitutional right to say whatever I want,î said Martin, the boardís vice president. ìI donít need to be told what to think. I can think for myself.î Board President Ed Abderholden and four other members voted for the policy, enough to pass it. He denied that the rules suppress board membersí rights. ìNowhere in this resolution does it limit trusteesí right to free speech,î Abderholden said. ìIt is the hope of the ethics statement that all trustees will act with civility to fellow trustees and respect the boardís decisions.î The three-page policy, which was enacted in 1998 and is scheduled to be renewed every two years, is formally called ìA Resolution Governing the Responsibilities of Trustees of the Cook Memorial Public Library.î It establishes rules for trustee behavior at meetings and generally in public. Among the rules in Cook Memorialís policy are standards instructing board members to: represent all citizens honestly and equally; avoid conflicts of interest; attend board and committee meetings; and represent the library in a positive and supportive manner at all times. ìI think the ethics statement lays out an expected code of conduct, not just for library trustees, but for any public official,î said Cook Memorial board member Linda Lucke. ìIt tells us how to conduct ourselves in a professional manner.î Martin, however, thinks some of the guidelines go too far. He especially objects to a point that says trustees should support the libraryís collection development policy, which governs what materials the library stocks, and guarantees patrons access to those items. Martin maintains that Cook Memorialís collection policy should be stricter, and said his ìnoî vote on the ethics policy reflected that concern. He also objected to the community development policy being singled out in the ethics rules as a policy to be upheld. ìWhy do we singularly take that policy?î Martin said. ìI think the board has an obligation to support all of the libraryís policies, period.î Foresterís opposition focuses on a line that requires board members to abide by majority decisions even if they disagree with the rulings. Occasionally in the minority on board votes, Forester believes trustees should be allowed to espouse their opinions regardless of whether they are popular. ìYou shouldnít blindly follow the majority,î Forester said. ìYou should stand for what you believe.î Although the ethics policy does not include options for punitive action for rules violations, Forester fears board members could use the document as a political weapon to punish other trustees. He cited the boardís 2003 public censure of Martin, which included accusations of misconduct, as an example of how the policy can be used for such purposes. ìEverybody is for ethics. Thatís a no-brainer,î Forester said. ì(But) I donít think this adds to ethics at all.î Reported in: Daily Herald, January 26.
Oceanport, New JerseyIn a case that challenges the right to freedom of speech, a 15-year-old boy is suing the Oceanport School District. Ryan Dwyer said officials at Maple Place Middle School disciplined him because of material on his personal Web site. Although Dwyer shut down the site, the teen said he was suspended for a week, removed from the school baseball team and barred from going on a class trip. Dwyer is no longer a student at Maple Place but on December 18 his family filed a lawsuit against the board of education seeking an apology and unspecified monetary damages. According to the lawsuit, Dwyer created the site at home and never used school facilities to edit or access it. Lawyers representing Dwyer say the district never identified what rule or law the teen broke. The Web site was launched in April. It greeted users with, ìWelcome to the Anti-Maple PlaceóYour Friendly Environment,î and said: ìThis page is dedicated to showing students why their school isnít what itís cracked up to be. You may be shocked at what you find on this site.î Dwyer said students were allowed to post opinions, but profanity was prohibited and no threats were allowed to be made. Reported in: News 12 New Jersey, December 18.
Grand Canyon, ArizonaHow old is the Grand Canyon? Most scientists agree with the version that rangers at Grand Canyon National Park tell visitorsóthat the 10-mile wide chasm in northern Arizona was carved by the Colorado River 5 million to 6 million years ago. Now, however, a book in the parkís bookstores tells another story. On sale since last summer, Grand Canyon: A Different View, by veteran Colorado River guide Tom Vail, asserts that the Grand Canyon was formed by the Old Testament flood, the one Noahís Ark survived, and can be no older than a few thousand years. The book includes essays from creationists and theologians. In the introduction, Vail wrote, ìFor years, as a Colorado River guide I told people how the Grand Canyon was formed over the evolutionary time scale of millions of years. Then I met the Lord. Now, I have a different view of the Canyon, which according to a biblical time scale, canít possibly be more than a few thousand years old.î Reaction to the book has been sharply divided. The American Geological Institute and seven geo-science organizations sent letters to the park and to agency officials calling for the book to be removed. In part to appease some outraged Grand Canyon employees, the book was moved from the natural sciences section to the inspirational reading section of park bookstores. ìIíve had reactions from the staff all over the board on it,î said park Deputy Supt. Kate Cannon. ìThere were certainly people on the interpretive staff that were upset by it. Respect of visitorsí views is imperative, but we do urge our interpreters to give scientifically correct information.î Park Service spokesman David Barna, who is based in Washington, said each park determined which products were sold in its bookstores and gift shops. The creationist book at the Grand Canyon was unanimously approved by a new-product review panel of park and gift shop personnel. But the bookís status at the park is still in question. Grand Canyonís superintendent, Joe Alston, has sought guidance from Park Service headquarters in Washington. Meanwhile, the book has sold out and is being reordered. The flap at the Grand Canyon highlights what officials say is a dilemma for the national park system: how to respect visitorsí spiritual views that may contradict the agencyís accepted scientific presentations and maintain the division of church and state. ìWe struggle. Creationism versus science is a big issue at some places,î said Deanne Adams, the Park Serviceís chief of interpretation for the Pacific Region. Adams said the questions came up most often at Western parks where geology was often highlighted. She singled out John Day Fossil Beds Monument in Oregon as a place where scientifically determined dates have been challenged. ìWe like to acknowledge that there are different viewpoints, but we have to stick with the science. Thatís our training,î Adams said. She said there was no federal guideline for how to answer religious inquiries. ìEvery fundamentalist or Christian group has a take on how they interpret the Bible. They are entitled to believe whatever they believe. Itís not our job to change their minds.î Last summer, the Park Service ordered the reinstatement of three plaques bearing Bible verses that had been erected at Grand Canyon National Park in 1970 by a group called the Evangelical Sisterhood of Mary. Alston called for their removal last summer after a complaint by the American Civil Liberties Union. Park Service Deputy Director Donald Murphy, who once ran the California State Parks Department, ordered the brass plaques returned and sent the group a letter apologizing for ìany intrusion.î The plaques are affixed to buildings at Hermits Rest, Lookout Studio and Desert View Tower, all popular tourist stops along the South Rim. They quote verses from the Book of Psalms, including ìSing to God, sing praises to His name, lift up a song to Him who rides upon the clouds. His name is the Lord, exult before Him!î Barna said Murphy overruled the Grand Canyon superintendent because he and the agencyís regional attorney were not sufficiently versed in constitutional law. ìWe contend that our superintendent knows a lot about wilderness protection but not enough about separation of church and state,î Barna said. To halt the removal of a cross placed in the Mojave National Preserve almost 70 years ago to commemorate World War I veterans, a Republican lawmaker from California proposed swapping the land it sits on with a private group. At the Lincoln Memorial, an eight-minute film that shows historical events at the memorial, including demonstrations for civil rights, abortion rights and gay rights, is being revised by the Park Service to add four minutes of more politically neutral events. While the Park Service says these are unrelated incidents, reflecting no overarching political policy, a national alliance of public environmental workers says the efforts are evidence of a new program of ìfaith-based parksî promoted by the Bush administration with the strong support of conservative groups. The apparent trend, the alliance says, has resulted in a willingness by Republican appointees now in senior positions in the Park Service to resolve disputes by protecting religious or conservative content, even in the face of arguments that the establishment clause of the First Amendment, which safeguards the separation of church and state, is being violated. ìThe Bush administration appears to be sponsoring a program of faith-based parks,î said Jeff Ruch, executive director of the nonprofit alliance, Public Employees for Environmental Responsibility. ìAny time a question arises, the professionals and lawyers are reversed and being told to respect the displays of religious symbols. We believe the actions by these officials violate their oath of office to defend the Constitution.î ìWhat this shows,î said Ruch, ìis that Christian fundamentalists and morally conservative groups have a special entree with the decision makers at the Park Service and the White House.î Barna denied that decisions made in these recent cases reflected political motives, insisting that political appointees have sought advice from career employees in resolving problems. ìThese are a few unrelated issues that have been put together just to criticize this administration,î said Barna, who has worked for the Park Service for eight years. Even so, in all but the case involving the cross, a senior political appointee at the Park Service has influenced the resolution of the dispute, fueling at least the impression that political considerations could have played a part in the decision. The film at the Lincoln Memorial has been shown for nearly a decade. But because so many of the events held there have been large protests sponsored by liberal groups, they tend to dominate the presentation. Last year, Barna said, several conservative groups complained that the film reflected ìa leftist political agenda,î leading to a decision by Fran P. Mainella, the Park Serviceís director, to order the film lengthened to include events like the gulf war victory parade in 1991 and tape of every president since the memorial opened in 1922. A dispute over the Mojave Desert cross arose when a former Park Service employee, Frank Buono, objected to the presence of a religious symbol on federal land. After Buono and the ACLU tried repeatedly to have it taken down, Congress passed a measure in December 2000, sponsored by Representative Jerry Lewis, a 13-term Republican from California, that prohibited spending money on its removal. A year later, the cross was designated a National Memorial, giving it federal protection. Buono then sued the Park Service and won, with a federal judge in Riverside, California, ordering the government to remove the cross. Rather than comply, the Park Service appealed. With the case now before the U.S. Court of Appeals for the Ninth Circuit, Rep. Lewis succeeded in getting a provision into the 2004 defense appropriations bill that could resolve the dispute by trading the acre around the cross for land owned by a private veterans group in Barstow, California. The government now claims that the land transfer, which could take several years, makes the litigation moot. Not so, say Buonoís lawyers, who argue that the designation of the cross as a memorial keeps it in federal handsóand should keep the court case alive. Religion and geology are intertwined in many parks and monuments dotted with shrines and various sites sacred to Native Americans, who are often afforded special access to worship. Nor are spiritual references absent. Indeed, viewed from the Grand Canyonís popular Bright Angel Trail are rock formations named by 19th century explorers after Hindu deities such as Vishnu. Some scholars say they have no objection to books that offer religious interpretations of the parks, provided they are not marketed as science. Historian Stephen J. Pyne, whose book How the Canyon Became Grand is also on sale in the parkís bookstores, said he did not mind if Vailís book was sold at the park, as long as it was not displayed in the science section. ìI have not read the book, but Iím familiar with the genre,î Pyne said. ìI think the Park Service would be remiss if it did not explain that there is not an agreed-upon story about the canyon, that there are conflicting stories. But science assumes it was not formed by a great flood or divine intervention. What this creationists group is looking for is some sort of validation by the Park Service. Thereís an agenda there.î Not so, says an official of the organization that published Vailís book, the Institute for Creation Research. Steven Austin, who heads ICRís geology department, said he worked with Vail on the book. Like Vail, Austin believes the oldest parts of the gorge are no older than 10,000 years. ìWe have a secular presentation at the Grand Canyon, and we donít want to suppress other ways of thinking,î Austin said. ìBut there needs to be room for more than one interpretation. It is appropriate to discuss theology, to express a creationist view. As long as all sides are presented, I donít see any problem with it.î George Billingsley, a geologist with the U.S. Geological Survey, has been studying the Grand Canyon for 36 years. He said scientists had never agreed about the exact age of the canyon, although most concurred that the oldest formations were nearly 2 billion years old. A scientific symposium held in 2000 to resolve the question of how the canyon was formed dissolved into acrimony and adjourned without consensus, he said. As for the creationist theory, Billingsley said: ìIf someone presented that theory to me, Iíd say, youíve got to have proof. You have to have some kind of mechanism to show what you say happened. I donít know how to argue with someone like that. But as far as putting the book in the bookstore, thatís fine. Thatís the freedoms we have. Everyone has to make up their own mind. You could put a book in there that says alien beings created the canyon. The more ideas you have out, the better.î Reported in: Los Angeles Times, January 7; New York Times, January 18.
Washington, D.C.A coalition of news and legal organizations is seeking public access to information about a postñSeptember 11 detention case now before the Supreme Court that has been handled with unusual secrecy both there and in the lower federal courts. The case, which the justices have not yet agreed to review, is an appeal filed by the Federal Public Defenderís office in Miami on behalf of Mohamed Kamel Bellahouel, an Algerian-born resident of South Florida and one of more than 1,000 Arab men swept up and imprisoned following the terrorist attacks of 2001. Because all the lower-court records, including the actual decisions, are sealed, there is little public information about the case, M.K.B. v. Warden. It was filed at the Supreme Court in June using only Bellahouelís initials. A brief filed at the court January 5 by the Reporters Committee for Freedom of the Press on behalf of 23 media organizations and other groups, including the American Immigration Lawyers Association, requests the courtís permission to intervene in the case. If granted, the unusual request would give the organizationsówhich include The New York Times, The Washington Post and CNNóthe status of parties, with a direct stake in the outcome, rather than simply ìfriends of the court.î Their brief tells the court that they would then argue that all information about the case should be made public except for material that is classified or ìtruly required for national security purposes.î Much of the information available comes from a series of articles in The Miami Daily Business Review, which learned about the case in March when it was pending before the United States Court of Appeals for the Eleventh Circuit, in Atlanta. The clerkís office of the appeals court inadvertently and briefly listed the case on a public docket. Previously, not even the existence of the case had been made public. The publicly available version of the Supreme Court petition omits many details, including even the identities of the lower courts, and includes blank pages. The justices received complete versions. After Solicitor General Theodore B. Olson told the court that the government would have no response to the petition, the court directed the government to respond. Bellahouel worked as a waiter in a restaurant in Delray Beach, Florida, that the Federal Bureau of Investigation says was patronized by at least two September 11 hijackers, Mohamed Atta and Marwan al-Shehhi. During his five-month imprisonment at the Krome Detention Center in Miami, Bellahouel was taken to Alexandria, Virginia, to testify before the grand jury that was investigating Zacarias Moussaoui. The government has not charged Bellahouel with any terrorism-related crimes and apparently does not regard him as a threat. He has been free on a $10,000 immigration bond since March 2002 and faces possible deportation for having overstayed the student visa on which he entered the country to attend Florida Atlantic University in 1996. His wife is a United States citizen. While in custody, Bellahouel sought release through a petition for a writ of habeas corpus filed in U.S. District Court in Miami. Judge Paul C. Huck closed all proceedings in the case, which was never listed on the courtís public docket. The Eleventh Circuit then maintained the secrecy, holding an argument behind closed doors last March 5 and issuing its decision under seal on March 31. For that reason, the substance of the case remains publicly unknown. The question that Kathleen M. Williams and Paul M. Rashkind of the Federal Public Defenderís office in Miami have brought to the Supreme Court, at least in the public part of their filing, is whether the lower courts ìfailed to comply with the courtís common-law and First Amendment jurisprudence governing public access to court filings and proceedingsî by cloaking the entire case in secrecy without justifying the need to do so. ìAlthough the right to access is not absolute, the right of the public to litigate its entitlement to access must be absolute if the public is to have means to effect its right of access,î the petition asserts. The Reporters Committeeís request to intervene asserts that the media organizationsí ìstrong First Amendment interests may not be adequately representedî by Bellahouel because, given his immigration situation, he may be motivated to settle the case rather than press the public-access argument. Reported in: New York Times, January 5.
Washington, D.C.When President Bush travels around the United States, the Secret Service visits the location ahead of time and orders local police to set up ìfree speech zonesî or ìprotest zones,î where people opposed to Bush policies (and sometimes sign-carrying supporters) are quarantined. These zones routinely succeed in keeping protesters out of presidential sight and outside the view of media covering the event. When Bush went to the Pittsburgh area on Labor Day 2002, 65-year-old retired steel worker Bill Neel was there to greet him with a sign proclaiming, ìThe Bush family must surely love the poor, they made so many of us.î The local police, at the Secret Serviceís behest, set up a ìdesignated free-speech zoneî on a baseball field surrounded by a chain-link fence a third of a mile from the location of Bushís speech. The police cleared the path of the motorcade of all critical signs, but folks with pro-Bush signs were permitted to line the presidentís path. Neel refused to go to the designated area and was arrested for disorderly conduct; the police also confiscated his sign. Neel later commented, ìAs far as Iím concerned, the whole country is a free-speech zone. If the Bush administration has its way, anyone who criticizes them will be out of sight and out of mind.î At Neelís trial, police Detective John Ianachione testified that the Secret Service told local police to confine ìpeople that were there making a statement pretty much against the president and his viewsî in a so-called free-speech area. Paul Wolf, one of the top officials in the Allegheny County Police Department, said that the Secret Service ìcome in and do a site survey, and say, ëHereís a place where the people can be, and weíd like to have any protesters put in a place that is able to be secured.í ì Pennsylvania District Judge Shirley Rowe Trkula threw out the disorderly conduct charge against Neel, declaring, ìI believe this is America. Whatever happened to ëI donít agree with you, but Iíll defend to the death your right to say ití?î Similar suppressions have occurred during Bush visits to Florida. A recent St. Petersburg Times editorial noted, ìAt a Bush rally at Legends Field in 2001, three demonstratorsótwo of whom were grandmothersówere arrested for holding up small handwritten protest signs outside the designated zone. And last year, seven protesters were arrested when Bush came to a rally at the USF Sun Dome. They had refused to be cordoned off into a protest zone hundreds of yards from the entrance to the Dome.î One of the arrested protesters was a 62-year-old man holding up a sign, ìWar is good business. Invest your sons.î The seven were charged with trespassing, ìobstructing without violence and disorderly conduct.î Police have repressed protesters during several Bush visits to the St. Louis area as well. When Bush visited on January 22, 150 people carrying signs were shunted far away from the main action and effectively quarantined. Denise Lieberman of the American Civil Liberties Union of Eastern Missouri commented, ìNo one could see them from the street. In addition, the media were not allowed to talk to them. The police would not allow any media inside the protest area and wouldnít allow any of the protesters out of the protest zone to talk to the media.î When Bush stopped by a Boeing plant to talk to workers, Christine Mains and her 5-year-old daughter disobeyed orders to move to a small protest area far from the action. Police arrested Mains and took her and her crying daughter away in separate squad cars. The Justice Department also prosecuted Brett Bursey, who was arrested for holding a ìNo War for Oilî sign at a Bush visit to Columbia, South Carolina. Local police, acting under Secret Service orders, established a ìfree-speech zoneî half a mile from where Bush would speak. Bursey was standing amid hundreds of people carrying signs praising the president. Police told Bursey to remove himself to the ìfree-speech zone.î Bursey refused and was arrested. Bursey said that he asked the police officer if ìit was the content of my sign, and he said, ëYes, sir, itís the content of your sign thatís the problem.í ì Bursey stated that he had already moved 200 yards from where Bush was supposed to speak. He later complained, ìThe problem was, the restricted area kept moving. It was wherever I happened to be standing.î Bursey was charged with trespassing. Five months later, the charge was dropped because South Carolina law prohibits arresting people for trespassing on public property. But the Justice Departmentóin the person of U.S. Attorney Strom Thurmond, Jr.óquickly jumped in, charging Bursey with violating a rarely enforced federal law regarding ìentering a restricted area around the president of the United States.î Bursey was convicted and faces a six-month jail sentence and a $5,000 fine. Federal Magistrate Bristow Marchant denied Burseyís request for a jury trial because his violation is categorized as a petty offense. Some observers believe that the feds are seeking to set a precedent in a conservative state such as South Carolina that could then be used against protesters nationwide. Burseyís trial took place on Nov. 12 and 13. His lawyers sought the Secret Service documents they believed would lay out the official policies on restricting critical speech at presidential visits. The Bush administration sought to block all access to the documents, but Marchant ruled that the lawyers could have limited access. Bursey sought to subpoena Attorney General John Ashcroft and presidential adviser Karl Rove to testify. Bursey lawyer Lewis Pitts declared, ìWe intend to find out from Mr. Ashcroft why and how the decision to prosecute Mr. Bursey was reached.î The magistrate refused, however, to enforce the subpoenas. Secret Service agent Holly Abel testified at the trial that Bursey was told to move to the ìfree-speech zoneî but refused to cooperate. The feds have offered some bizarre rationales for hog-tying protesters. Secret Service agent Brian Marr explained to National Public Radio, ìThese individuals may be so involved with trying to shout their support or nonsupport that inadvertently they may walk out into the motorcade route and be injured. And that is really the reason why we set these places up, so we can make sure that they have the right of free speech, but, two, we want to be sure that they are able to go home at the end of the evening and not be injured in any way.î Except for having their constitutional rights shredded. The ACLU, along with several other organizations, is suing the Secret Service for what it charges is a pattern and practice of suppressing protesters at Bush events in Arizona, California, Connecticut, Michigan, New Jersey, New Mexico, Texas and elsewhere. The ACLUís Witold Walczak said of the protesters, ìThe individuals we are talking about didnít pose a security threat; they posed a political threat.î The Secret Service is duty-bound to protect the president. But opponents of the policy argue that it is ludicrous to presume that would-be terrorists are lunkheaded enough to carry anti-Bush signs when carrying pro-Bush signs would give them much closer access. And even a policy of removing all people carrying signsóas has happened in some demonstrationsóis pointless because potential attackers would simply avoid carrying signs. Assuming that terrorists are as unimaginative and predictable as the average federal bureaucrat is not a recipe for presidential longevity. The Bush administrationís anti-protester bias proved embarrassing for two American allies with long traditions of raucous free speech, resulting in some of the most repressive restrictions in memory in free countries. When Bush visited Australia in October, Sydney Morning Herald columnist Mark Riley observed, ìThe basic right of freedom of speech will adopt a new interpretation during the Canberra visits this week by George Bush and his Chinese counterpart, Hu Jintao. Protesters will be free to speak as much as they like just as long as they canít be heard.î Demonstrators were shunted to an area away from the Federal Parliament building and prohibited from using any public address system in the area. For Bushís recent visit to London, the White House demanded that British police ban all protest marches, close down the center of the city and impose a ìvirtual three-day shutdown of central London in a bid to foil disruption of the visit by anti-war protesters,î according to Britainís Evening Standard. But instead of a ìfree-speech zone,î the Bush administration demanded an ìexclusion zoneî to protect Bush from protestersí messages. Such unprecedented restrictions did not inhibit Bush from portraying himself as a champion of freedom during his visit. In a speech at Whitehall November 19, Bush hyped the ìforward strategy of freedomî and declared, ìWe seek the advance of freedom and the peace that freedom brings.î Attempts to suppress protesters become more disturbing in light of the Homeland Security Departmentís recommendation that local police departments view critics of the war on terrorism as potential terrorists. In a May terrorist advisory, the Homeland Security Department warned local law enforcement agencies to keep an eye on anyone who ìexpressed dislike of attitudes and decisions of the U.S. government.î If police vigorously followed this advice, millions of Americans could be added to the official lists of suspected terrorists. Protesters have claimed that police have assaulted them during demonstrations in New York, Washington and elsewhere. One of the most violent government responses to an antiwar protest occurred when local police and the federally funded California Anti-Terrorism Task Force fired rubber bullets and tear gas at peaceful protesters and innocent bystanders at the Port of Oakland, injuring a number of people. When the police attack sparked a geyser of media criticism, Mike van Winkle, speaking for the California Anti-Terrorism Information Center, told the Oakland Tribune, ìYou can make an easy kind of a link that, if you have a protest group protesting a war where the cause thatís being fought against is international terrorism, you might have terrorism at that protest. You can almost argue that a protest against that is a terrorist act.î Van Winkle justified classifying protesters as terrorists: ìIíve heard terrorism described as anything that is violent or has an economic impact, and shutting down a port certainly would have some economic impact. Terrorism isnít just bombs going off and killing people.î Such aggressive tactics become more ominous in light of the Bush administrationís advocacy, in its Patriot II draft legislation, of nullifying all judicial consent decrees restricting state and local police from spying on those groups who may oppose government policies. On May 30, 2002, Attorney General John Ashcroft effectively abolished restrictions on FBI surveillance of Americansí everyday lives first imposed in 1976. One FBI internal newsletter encouraged FBI agents to conduct more interviews with antiwar activists ìfor plenty of reasons, chief of which it will enhance the paranoia endemic in such circles and will further service to get the point across that there is an FBI agent behind every mailbox.î The FBI took a shotgun approach toward protesters partly because of the FBIís ìbelief that dissident speech and association should be prevented because they were incipient steps toward the possible ultimate commission of an act which might be criminal,î according to a Senate report. On November 23, news broke that the FBI was actively conducting surveillance of antiwar demonstrators, supposedly to ìblunt potential violence by extremist elements,î according to a Reuters interview with a federal law enforcement official. Given the FBIís expansive definition of ìpotential violenceî in the past, this is a net that could catch almost any group or individual who falls into official disfavor. Reported in: American Conservative, December 15; San Francisco Chronicle, January 4.
Washington, D.C.President George W. Bush has quietly signed into law a measure that gives the FBI increased surveillance powers and dramatically expands the reach of the USA PATRIOT Act. The Intelligence Authorization Act for Fiscal Year 2004 grants the FBI unprecedented power to obtain records from financial institutions without requiring permission from a judge. Under the law, the FBI does not need to seek a court order to access such records, nor does it need to prove just cause. Previously, under the PATRIOT Act, the FBI had to submit subpoena requests to a federal judge. Intelligence agencies and the Treasury Department, however, could obtain some financial data from banks, credit unions and other financial institutions without a court order or grand jury subpoena if they had the approval of a senior government official. The new law, however, lets the FBI acquire these records through an administrative procedure whereby an FBI field agent simply drafts a so-called national security letter stating the information is relevant to a national security investigation. And the law broadens the definition of ìfinancial institutionî to include such businesses as insurance companies, travel agencies, real estate agents, stockbrokers, the U.S. Postal Service and even jewelry stores, casinos and car dealerships. The law also prohibits subpoenaed businesses from revealing to anyone, including customers who may be under investigation, that the government has requested records of their transactions. Bush signed the bill on December 13, a Saturday, which was the same day the U.S. military captured Saddam Hussein. Some columnists and bloggers have accused the president of signing the legislation on a weekend, when news organizations traditionally operate with a reduced staff, to avoid public scrutiny and criticism. Any attention that might have been given the bill, they say, was supplanted by a White House announcement the next day about Husseinís capture. James Dempsey, executive director of the Center for Democracy & Technology, didnít see any significance to the timing of Bushís signing. The 2004 fiscal year began October 1 and the Senate and House passed the final version of the act in November. He said there was pressure to pass the legislation to free up intelligence spending. However, Dempsey called the inclusion of the financial provision ìan intentional end-runî by the administration to expand the administrationís power without proper review. Critics like Dempsey say the government is trying to pass legislation that was shot down prior to the U.S. invasion of Iraq, when the Bush administration drafted plans to expand the powers of the PATRIOT Act. The so-called PATRIOT Act II, as the press dubbed it, was written by the Justice Department. The Center for Public Integrity discovered it last year and exposed the document, initiating a public outcry that forced the government to back down on its plans. But critics say the government didnít abandon its goals after the uproar; it simply extracted the most controversial provisions from PATRIOT Act II and slipped them surreptitiously into other bills, such as the Intelligence Authorization Act, to avoid raising alarm. Dempsey said the Intelligence Authorization Act is a favorite vehicle of politicians for expanding government powers without careful scrutiny. The bill, because of its sensitive nature, is generally drafted in relative secrecy and approved without extensive debate because it is viewed as a ìmust-passî piece of legislation. The act provides funding for intelligence agencies. ìItís hard for the average member to vote against it,î said Dempsey, ìso it makes the perfect vehicle for getting what you want without too much fuss.î The provision granting increased power was little more than a single line of the legislation. But Dempsey said it was written in such a cryptic manner that no one noticed its significance until it was too late. ìWe were the first to notice it outside of Congress,î he said, ìbut we only noticed it in September after it had already passed in the House.î Rep. Porter Goss (R-FL), chair of the House Intelligence Committee that reviewed the bill, introduced the legislation into the House last year on June 11, where it passed two weeks later by a vote of 410-9. The Senate passed the bill by unanimous consent in July before it went to conference. Goss told the House last year that he believed the financial institution provision in the bill brought the intelligence community up to date with the reality of the financial industry. ìThis bill will allow those tracking terrorists and spies to ëfollow the moneyí more effectively and thereby protect the people of the United States more effectively,î he said. But Rep. Betty McCollum (D-MN), who opposed the legislation, told the House, ìIt is clear the Republican leadership and the administration would rather expand on the USA PATRIOT Act through deception and secrecy than debate such provisions in an open forum.î McCollum voted in favor of the legislation in the House in June before she and other legislators realized the significance of the provision. She opposed the final conference report in November. A conference report reconciles differences of opinion between the two legislative bodies and represents the final wording of a bill before it goes to the president for signature. A number of other representatives expressed concern that the financial provision was slipped into the Intelligence Act at the eleventh hour with no time for public debate and against objections from members the Senate Judiciary Committee, which normally has jurisdiction over the FBI. Sen. Patrick Leahy (D-VT), the minority leader of the Senate Judiciary Committee, along with five other members of the Judiciary Committee, sent a letter to the Intelligence Committee requesting that their committee be given time to review the bill. But the provision had already passed by the time their letter went out. ìIn our fight to protect America and our people, to make our world a safer place, we must never turn our backs on our freedoms,î said Rep. C.L. ìButchî Otter (R-ID) in a November press release. ìExpanding the use of administrative subpoenas and threatening our system of checks and balances is a step in the wrong direction.î Otter also voted in favor of the bill in the House in June but, like McCollum, he opposed the final conference report in November once the significance of the provision was clear. Charlie Mitchell, legislative counsel for the American Civil Liberties Union, said many legislators failed to recognize the significance of the legislation until it was too late. But he said the fact that fifteen Republicans and over a hundred Democrats voted against the conference report indicated that, had there been more time, there probably would have been sufficient opposition to remove the provision. ìTo have that many people vote against it, based on just that one provision without discussion beforehand, signifies there is strong opposition to new PATRIOT Act II powers,î Mitchell said. He said legislators are now on the lookout for other PATRIOT Act II provisions being tucked into new legislation. ìAll things considered, this was a loss for civil liberties,î he said. But on a brighter note, ìthis was the only provision of PATRIOT II that made it through this year. Members are hearing from their constituents. I really think we have the ability to stop much of this PATRIOT Act II legislation in the future.î Reported in: Wired News, January 6. Washington, D.C.A second airline has acknowledged releasing information on its passengers for an experiment to determine if the government could ìmineî the data to spot terrorists. The carrier, Northwest Airlines, confirmed that it gave NASA data on passengers who flew during several months in 2001. The airlineís action came to light through Freedom of Information Act requests made to the Transportation Security Administration and NASA by the Electronic Privacy Information Center, a Washington-based privacy-rights group. The information Northwest turned over to the government appears to involve more than 10 million passengers, said David L. Sobel, the general counsel for the privacy group. ìItís now the second major privacy violation by a U.S. airline in response to government requests for information,î Sobel said. ìThere has been resistance on the part of the airlines to openly support these efforts in recognition of passenger concerns, so it is troubling to see this information secretly shared with the government.î Sobel said his group planned to file a complaint with the Department of Transportation requesting an investigation into the airlineís actions. It also plans to file a lawsuit against the National Aeronautics and Space Administration to seek more information about the agencyís secret project. In September 2003, a smaller carrier, JetBlue, said it had given information on passengers to a company that works under contract for the Defense Department. The contractor matched the data to other available information to determine the passengersí Social Security numbers and other information. The disclosure was heavily criticized by privacy advocates, and JetBlue later apologized to its customers. At the time of JetBlueís apology, Northwest officials publicly stated that their airline, the nationís fourth-largest, would not divulge information on its passengers. ìWe do not provide that type of information to anyone,î Kurt Ebenhoch, a spokesman for Northwest, told The New York Times in a story published on September 23. On January 17, Ebenhoch said he had no comment about whether Northwest had portrayed itself accurately in September. Asked what period was covered by the passenger records that Northwest gave NASA, Ebenhoch said he would not say because that might violate Northwestís security precautions. The company said in a statement: ìOur privacy policy commits Northwest not to sell passenger information to third parties for marketing purposes. This situation was entirely different, as we were providing the data to a government agency to conduct specific scientific research related to aviation security and we were confident that the privacy of passenger information would be maintained.î Researchers at NASAís Ames Laboratory had hoped to use data to find unusual travel patterns as clues to terroristsí identities. A laboratory official, David R. Morse, said that researchers at the facility, at Moffett Field near San Jose, California, ìonly ever looked at one daysí worth of data.î ìThey were looking to see if they could develop algorithms that were useful for security,î Morse said. ìThey decided it wasnít a technology that was going to be useful.î In the wake of the Jet Blue controversy, government officials became concerned about their use of passenger data. In an e-mail message sent on September 23, in which the government said it was returning the data to the airline, a NASA official told a Northwest executive that ìour data mining for aviation security projectî had not received financing for fiscal year 2003. ìMy interpretation is that NASA management decided that they did not want to continue working with passenger data in order to avoid creating the appearance that we are violating peopleís privacy,î the NASA official wrote. In the e-mail message, the official also mentioned ìthe problems that JetBlue is now having after providing passenger data for a project similar to ours.î Since the Jet Blue controversy, the airlines and the government have been arguing over a related problem, a program that the government is trying to establish called Computer Assisted Passenger Pre-Screening, or Capps 2, which is supposed to identify about 5 percent of passengers that require closer scrutiny. Reported in: New York Times, January 18.
Washington, D.C.Media companies will be able to own television stations that reach 39 percent of the American viewing public under the big spending bill approved January 22 by Congress. The Federal Communications Commission had voted to allow the companies to reach 45 percent of viewers, but Congress then voted to keep the current 35 percent limit. Under a veto threat from President Bush, lawmakers agreed to the 39 percent cap. The bill also takes the power to change the cap away from the FCC. The 39 percent limit allows two media giantsóViacom, Inc., owner of CBS and UPN, and News Corp., owner of Foxóto keep all their television stations. Through mergers and acquisitions, both had exceeded the 35 percent cap. Viacom and News Corp. spent a combined $5.5 million on lobbying between January 1, 2002, and June 30, 2003, and $2.3 million on campaign contributions for the 2002 and 2004 elections. Bush has received more in campaign donations from the broadcast industry than any other federal candidate since January 1, 2003. He took in $158,450ómore than 10 percent of the industryís $1.4 million in donations for the 2004 campaign, according to the Center for Responsive Politics, a nonpartisan research group. There also is a legal battle over media ownership rules. A federal appeals court in Philadelphia temporarily blocked the higher cap and suspended other FCC-adopted ownership changes, including rules making it easier for companies to own newspapers and broadcast stations in the same community. Opponents of the higher cap said they regretted Congressís action but would work with lawmakers to overturn the FCCís other media ownership rules. Reported in: Boston Globe, January 23. Washington, D.C.The Federal Communications Commission (FCC) proposed a $755,000 fine against Clear Channel Communications January 27 for a sexually explicit radio show aired on four stations, the second-highest such fine ever proposed. The FCC, whose chair recently urged that penalties be increased for indecent programming, said the stationsóall in Floridaóaired various episodes of ìBubba the Love Spongeî a total of 26 times. The commission proposed fining Clear Channel the maximum $27,500 for each time the episode ran, or $715,000. Clear Channel also was fined $40,000 because of record-keeping violations at the stations. In response, Clear Channel called for an industry task force to develop clear indecency standards for radio, television, cable and satellite networks. ìWe believe the time has come for every sector of the media to join together and develop consistent standards that are in tune with local community values,î said Mark Mays, president of the company. ìOur audiences deserve nothing less.î The FCC also announced that it wanted to fine KRON Channel 4 in San Francisco the maximum $27,500 for broadcasting indecent material on its morning news program. During an interview with performers of the ìPuppetry of the Penis,î who wore capes but nothing else, one of the actors exposed himself. The FCC said the station should have expected that such a display could have occurred and should have taken steps to prevent it. It would be just the second fine leveled against a television broadcast for indecency. ìI hope this step today represents the beginning of a commitment to consider each indecency complaint seriously, and to recognize that indecency on our airwaves is not limited to the radio,î FCC Commissioner Kevin Martin said. The largest fine ever for indecency was $1.7 million paid by Infinity Broadcasting in 1995. Also, the FCC last October proposed fining Infinity $357,000 for a radio segment on the ìOpie and Anthonyî show in which a couple was said to be having sex in New Yorkís St. Patrickís Cathedral. The head of Clear Channel Radio said his broadcasts are not meant to be indecent. ìWe work hard every day to entertain, not offend our listeners,î said John Hogan. ìNone of us defend or encourage indecent content; itís simply not part of our corporate culture.î The latest fines came a day before a congressional hearing on obscenity prompted by the FCC enforcement bureauís decision not to fine rock star Bono for an expletive uttered on NBC during the Golden Globe Awards show last year. The lead singer of the Irish rock group U2 said, ìThis is really, really, f------ brilliant.î The bureau said Bonoís comments were not indecent or obscene because of the way the word was used. FCC Chair Michael Powell asked his fellow commissioners to overturn the decision. In addition, legislation has been introduced in the House to prohibit broadcasters from airing eight specific words or phrases, including the word uttered by Bono. Powell also urged Congress to approve a tenfold increase in the maximum fine of $27,500 per incident. He said the current fine is not large enough to dissuade huge broadcasters from airing objectionable programming. Rep. Fred Upton (R-MI), chair of the House telecommunications subcommittee holding the hearing, introduced legislation to boost the fines. Under FCC rules and federal law, radio stations and over-the-air television channels cannot air obscene material at any time, and cannot air indecent material between 6 a.m. and 10 p.m. The FCC defines obscene material as describing sexual conduct ìin a patently offensive wayî and lacking ìserious literary, artistic, political or scientific value.î Indecent material is not as offensive but still contains references to sex or excretions. Reported in: San Francisco Chronicle, January 27.
Philadelphia, PennsylvaniaA federal judge in Philadelphia heard a challenge January 6 to a controversial state law that has led to more than 1 million innocuous Web sites being accidentally blocked. Although the law is only a Pennsylvania state statute, it has an international reach. When the Pennsylvania attorney general used it to force MCI to ban access to some sites with suspected child pornography, the company said it had no choice but to block those Internet addresses for all of its North American subscribers. Two nonprofit groups, the Center for Democracy and Technology (CDT) and the American Civil Liberties Union (ACLU), filed suit against Pennsylvania in September. Their lawsuit claims that the state lawís ìsecret censorship ordersî have led to more than 1 million Web sites blocked, nearly all featuring legal material. ìThe reason weíre looking at this law is that it was at one point seen as a model law by several different states,î said Ari Schwartz, CDTís associate director. ìWe were concerned that this would spread and become a model for blocking content.î CDT sent one of its lawyers to testify against a similar proposal in the Maryland House of Delegates last March and says Oklahoma and some national legislative groups have considered the same approach. CDT and ACLU lawyers asked U.S. District Court Judge Jan DuBois to declare the law unconstitutional and bar Pennsylvania from invoking it again. Immediately after being sued in September, Pennsylvania Attorney General Mike Fisher agreed to stop sending additional secret orders while the case was in progress. In December, Fisher resigned to become a federal appeals court judge, and Gerald Pappert replaced him as the stateís acting attorney general. Sean Connolly, speaking for the attorney general, called the lawsuitís claim of 1 million sites blocked ìan exaggeration. . .If a million legitimate sites were being blocked, we think we would have heard about that.î ìWe will defend the state law against this challenge,î Connolly said. ìThis is a law passed by the general assembly to protect children. We believe it has worked in Pennsylvania, and weíre prepared to defend it.î Fisher had sent at least 500 letters to Internet service providers, ordering them to cordon off specific child porn sites. In an October deposition, America Online said one letter from Fisher led to the blocking of 400,000 unrelated Web sites and that a second led to blocking tens of thousands of Web sites About.com hosts. In another deposition the same month, a Verizon Communications executive said one letter from Fisher led to ìupward of 500,000î Web sites being blocked. The reason so many legitimate sites were blocked is due to the way the Internet is designed. The original version of the Hypertext Transfer Protocol (HTTP) required each Web site to have its own Internet address, which maps domain names to numeric values. In response to an apparent shortage of addresses, HTTP 1.1 in 1999 permitted each Internet address to host an arbitrary number of Web domains. That practice of address sharing means that one censorship order can affect thousands of other innocuous Web sites. A February 2003 study from Harvard Universityís Berkman Center for Internet & Society suggested that Yahoo! hosted 74,000 Web sites at one address; Tucows used one address for 68,000 domains; and Namezero.com pointed 56,000 domains to one address. ìMore than 85 percent of active domain names are found to share their Web servers with one or more additional domains,î the study said. In a brief it filed last month, Pennsylvania said the ACLU and CDT do not have any reason to sue and asked DuBois to throw out the case. The notices do not ìintentionally restrain any constitutionally protected speech,î the state said. ìISPs can disable access to child pornography items likely to be identified in defendantsí notices without disabling access to any significant amount of legitimate speech.î ìA URL is neither a person nor a real forum nor a limited commodity,î Pennsylvania said. ìIt is a little string of letters and numbers that acts as a superficial label. URLs are infinite in quantity. Even complete retirement of one will not diminish speech. Speech can always find another URL, and probably (one) pretty close to the out-of-commission string. The new URL will be in the same cyberspace, accessible in the same physical places, as the retired URL.î The Pennsylvania state law in question, which took effect in 2002, permits the attorney general to seek a court order that forces ISPs to block access to the Internet Protocol address of sites that are suspected of featuring child pornography. Instead of relying on a formal order, Fisher instead sent out hundreds of ìinformalî notices that direct Internet providers to block access to suspected child porn. Two CDT and ACLU witnesses, Laura Blain, Webmaster for the Pennsylvania Alliance for Democracy, and Mitchell Marcus, a professor of computer science at the University of Pennsylvania, testified against the law. Blain described how two of her clients, a community recreation center and a school, found their Web sites blocked by an order the attorney generalís office sent to Dallas, Pennsylvania-based Epix Internet services. ìWe believe the attorney general could contact the Web host directly and get the content taken down from the entire Internet as opposed to one ISPís customers,î CDT attorney John Morris said. ìWe believe thereís a proven successful method that is far more effective without risking any innocent, blocked sites.î Reported in: News.com, January 6.
Philadelphia, PennsylvaniaLast fall, a group of civic-minded students at Swarthmore College received a sobering lesson in the future of political protest. They had come into possession of some 15,000 e-mail messages and memosópresumably leaked or stolenófrom Diebold Election Systems, the largest maker of electronic voting machines in the country. The memos featured Diebold employeesí candid discussion of flaws in the companyís software and warnings that the computer network was poorly protected from hackers. In light of the chaotic 2000 presidential election, the Swarthmore students decided that this information shouldnít be kept from the public. Like aspiring Daniel Ellsbergs with their would-be Pentagon Papers, they posted the files on the Internet, declaring the act a form of electronic whistle-blowing. Unfortunately for the students, their actions ran afoul of the 1998 Digital Millennium Copyright Act (DMCA), one of several recent laws that regulate intellectual property and are quietly reshaping the culture. Designed to protect copyrighted material on the Web, the act makes it possible for an Internet service provider to be liable for the material posted by its usersóan extraordinary burden that providers of phone service, by contrast, do not share. Under the law, if an aggrieved party (Diebold, say) threatens to sue an Internet service provider over the content of a subscriberís Web site, the provider can avoid liability simply by removing the offending material. Since the mere threat of a lawsuit is usually enough to scare most providers into submission, the law effectively gives private parties veto power over much of the information published onlineóas the Swarthmore students would soon learn. Not long after the students posted the memos, Diebold sent letters to Swarthmore charging the students with copyright infringement and demanding that the material be removed from the studentsí Web page, which was hosted on the collegeís server. Swarthmore complied. The question of whether the students were within their rights to post the memos was essentially moot: thanks to the Digital Millennium Copyright Act, their speech could be silenced without the benefit of actual lawsuits, public hearings, judges or other niceties of due process. After persistent challenges by the studentsóand a considerable amount of negative publicity for Dieboldóin November the company agreed not to sue. To the delight of the studentsí supporters, the memos are now back on their Web site. But to proponents of free speech on the Internet, the story remains a chilling one. Siva Vaidhyanathan, a media scholar at New York University, calls anecdotes like this ìcopyright horror stories,î and there have been a growing number of them over the past few years. Once a dry and seemingly mechanical area of the American legal system, intellectual property law can now be found at the center of major disputes in the arts, sciences andóas in the Diebold caseópolitics. Recent cases have involved everything from attempts to force the Girl Scouts to pay royalties for singing songs around campfires to the infringement suit brought by the estate of Margaret Mitchell against the publishers of Alice Randallís book The Wind Done Gone (which tells the story of Mitchellís Gone with the Wind from a slaveís perspective) to corporations like Celera Genomics filing for patents for human genes. The most publicized development came in September, when the Recording Industry Association of America began suing music downloaders for copyright infringement, reaching out-of-court settlements for thousands of dollars with defendants as young as 12. And in November, a group of independent film producers went to court to fight a ban, imposed this year by the Motion Picture Association of America, on sending DVDís to those who vote for annual film awards. Not long ago, the Internetís ability to provide instant, inexpensive and perfect copies of text, sound and images was heralded with the phrase ìinformation wants to be free.î Yet the implications of this freedom have frightened some creatorsóparticularly those in the recording, publishing and movie industriesówho argue that the greater ease of copying and distribution increases the need for more stringent intellectual property laws. The movie and music industries have succeeded in lobbying lawmakers to allow them to tighten their grips on their creations by lengthening copyright terms. The law also has extended the scope of copyright protection, creating what critics have called a ìparacopyright,î which prohibits not only duplicating protected material but in some cases even gaining access to it in the first place. In addition to the Digital Millennium Copyright Act, the most significant piece of new legislation is the 1998 Copyright Term Extension Act, which added 20 years of protection to past and present copyrighted works and was upheld by the Supreme Court a year ago. In response to these developments, a protest movement is forming, made up of lawyers, scholars and activists who fear that bolstering copyright protection in the name of foiling ìpiracyî will have disastrous consequences for societyóhindering the ability to experiment and create and eroding our democratic freedoms. This group of reformers, which Lawrence Lessig, a professor at Stanford Law School, calls the ìfree culture movement,î might also be thought of as the ìCopy Leftî (to borrow a term originally used by software programmers to signal that their product bore fewer than the usual amount of copyright restrictions). Lawyers and professors at the nationís top universities and law schools, the members of the Copy Left arenít wild-eyed radicals opposed to the use of copyright, though they do object fiercely to the way copyright has been distorted by recent legislation and manipulated by companies like Diebold. Nor do they share a coherent political ideology. What they do share is a fear that the United States is becoming less free and ultimately less creative. While the American copyright system was designed to encourage innovation, it is now, they contend, being used to squelch it. They see themselves as fighting for a traditional understanding of intellectual property in the face of a radical effort to turn copyright law into a tool for hoarding ideas. ìThe notion that intellectual property rights should never expire, and works never enter the public domainóthis is the truly fanatical and unconstitutional position,î says Jonathan Zittrain, a co-founder of the Berkman Center for Internet and Society at Harvard Law School, the intellectual hub of the Copy Left. Thinkers like Lessig and Zittrain promote a vision of a world in which copyright law gives individual creators the exclusive right to profit from their intellectual property for a brief, limited periodóthus providing an incentive to create while still allowing successive generations of creators to draw freely on earlier ideas. They stress that borrowing and collaboration are essential components of all creation and caution against being seduced by the romantic myth of ìthe authorî: the lone garret-dwelling poet, creating masterpieces out of thin air. ìNo one writes from nothing,î says Yochai Benkler, a professor at Yale Law School. ìWe all take the world as it is and use it, remix it.î In opposition to the cultural commons stands the ìpermission culture,î an epithet the Copy Left uses to describe the world it fears our current copyright law is creating. Whereas you used to own the CD or book you purchased, in the permission culture it is more likely that youíll lease (or ìlicenseî) a song, video or e-book, and even then only under restrictive conditions: read your e-book, but donít copy and paste any selections; listen to music on your MP3 player, but donít burn it onto a CD or transfer it to your stereo. The Copy Left sees innovations like iTunes, Appleís popular online music store, as the first step toward a society in which much of the cultural activity that we currently take for grantedóreading an encyclopedia in the public library, selling a geometry textbook to a friend, copying a song for a siblingówill be rerouted through a system of micropayments in return for which the rights to ever smaller pieces of our culture are doled out. ìSooner or later,î predicts Miriam Nisbet, the legislative counsel for the American Library Association, ìyouíll get to the point where you say, ëWell, I guess that 25 cents isnít too much to pay for this sentence,í and then thereís no hope and no going back.î ìWe are at a moment in our history at which the terms of freedom and justice are up for grabs,î Benkler says. He notes that each major innovation in the history of communicationsóthe printing press, radio, telephoneówas followed by a brief period of openness before the rules of its usage were determined and alternatives eliminated. ìThe Internet,î he says, ìis in that space right now.î America has always had an ambivalent attitude toward the notion of intellectual property. Thomas Jefferson, for one, considered copyright a necessary evil: he favored providing just enough incentive to create, nothing more, and thereafter allowing ideas to flow freely as nature intended. ìIf nature has made any one thing less susceptible than all others of exclusive property,î he wrote, ìit is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone.î His conception of copyright was enshrined in Article 1, Section 8 of the Constitution, which gives Congress the authority to ìpromote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.î But Jeffersonís vision has not fared well. As the countryís economy developed from agrarian to industrial to ìinformation,î ideas took on greater importance, and the demand increased for stronger copyright laws. In 1790, copyright protection lasted for 14 years and could be renewed just once before the work entered the public domain. Between 1831 and 1909, the maximum term was increased from 28 to 56 years. Today, copyright protection for individuals lasts for 70 years after the death of the author; for corporations, itís 95 years after publication. Over the past three decades, the flow of material entering the public domain has slowed to a trickle: in 1973, according to Lessig, more than 85 percent of copyright owners chose not to renew their copyrights, allowing their ideas to become common coin; since the 1998 Copyright Term Extension Act lengthened present and past copyrights for an additional 20 years, little material will enter the public domain any time soon. What also troubles the Copy Left, however, are the unintended consequences of seemingly innocuous tweaks in copyright legislation. In particular, two laws that were passed years before the creation of the Internet helped set the stage for todayís copyright bonanza. Before the 1909 Copyright Act, copyright was construed as the exclusive right to ìpublishî a creation; but the 1909 law changed the wording to prohibit others from ìcopyingî oneís creationóa seemingly minor change that thereafter linked copyright protection to the copying technology of the day, whether that was the pen, the photocopy machine, the VCR or the Internet. In 1976, a revision to the law dispensed with the requirement of formally registering or renewing a copyright in order to comply with international copyright standards. Henceforth, everythingófrom e-mail messages to doodles on a napkinówas automatically copyrighted the moment it was ìfixed in a tangible medium.î The true significance of these two laws didnít become apparent until the arrival of the Internet, when every work became automatically protected by copyright and every use of a work via the Internet constituted a new copy. ìNobody realized that eliminating those requirements would create a nightmare of uncertainty and confusion about what content is available to use,î Lessig explains, ìwhich is a crucial question now that the Internet is the way we gain access to so much content. It was a kind of oil spill in the free culture.î Lessig is one of the most prominent and eloquent defenders of the Copy Leftís belief that copyright law should return to its Jeffersonian roots. ìWe are invoking ideas that should be central to the American tradition, such as that a free society is richer than a control society,î he says. ìBut in the cultural sphere, big media wants to build a new Soviet empire where you need permission from the central party to do anything.î He complains that Americans have been reduced to ìan Oliver Twistñlike position,î in which they have to ask, ìPlease, sir, may I?î every time we want to use something under copyrightóand then only if we are fortunate enough to have the assistance of a high-priced lawyer. In October 2002, Lessig argued before the Supreme Court in Eldred v. Ashcroft, which concerned a challenge to the Copyright Term Extension Act. On behalf of the plaintiffs, Lessig argued that perpetually extending the term of copyright was a violation of the Constitutionís requirement that copyright exist for ìa limited time.î The court responded that although perhaps unwise on policy grounds, granting such extensions was within Congressís power. It was a major setback for the Copy Left. Given the Eldred decision, there is nothing to stop a future Congress from extending copyrightís term again and again. Jane Ginsburg, a professor at Columbia Law School who specializes in copyright law, fears that in the Copy Leftís rush to secure the public domain, it gives short shrift to the author. A self-described ìcopyright enthusiast,î Ginsburg considers the author the moral center of copyright law and questions equating copyright control with corporate greed. ìCopyright cannot be understood merely as a grudgingly tolerated way station on the road to the public domain,î she writes in a recent article titled ìThe Concept of Authorship in Comparative Copyright Law.î ìBecause copyright arises out of the act of creating a work, authors have moral claims that neither corporate intermediaries nor consumer end-users can (straightfacedly) assert.î Ginsburg and others embrace many elements of the ìpermission societyî demonized by the Copy Left and cite developments like the iTunes store as a sign of greater consumer choice and freedom. In his book, Copyrightís Highway, Paul Goldstein, a professor at Stanford Law School, writes that ìthe logic of property rights dictates their extension into every corner in which people derive enjoyment and value from literary and artistic works.î He characterizes the permission society as a ìcelestial jukeboxî in which access to every creationómusic, literature, movies, artóis available to anyone for a price. But the Copy Left is convinced that there is a better way for the entertainment industry to adapt to the Internet age while still paying its artists their due. William Fisher, director of the Berkman Center, has spent the last three years devising an alternative compensation system that would enable the entertainment industry to restructure its business model without resorting to cumbersome micropayments. He has worked out a modified version of the system that artistsí advocacy groups currently use to make sure that composers are paid when their music is performed or recorded. According to Fisherís plan, all works capable of being transmitted online would be registered with a central office (whether government or independent is unclear). The central office would then monitor how frequently a work is used and compensate the creators on that basis. The money would come from a tax on various content-related devices, like DVD burners, blank CDís or digital recorders. It is a brave proposal in a political culture that is allergic to taxes and uncomfortable with complex solutions. Still, if his numbers do indeed add up, Fisherís proposal might be the best thing that ever happened to the cultural commons: the creators would be paid, while every individual would have unlimited access to every cultural creation. Reported in: New York Times Magazine, January 25.
Detroit, MichiganA coalition of booksellers, librarians, publishers and magazine distributors filed a federal lawsuit January 6 challenging the constitutionality of a new Michigan law that makes it a crime to allow a minor to examine a book that is ìharmful to minors.î ìThis law would drastically alter the character of bookstores,î Chris Finan, president of the American Booksellers Foundation for Free Expression (ABFFE), said. ìToday, bookstores are open, welcoming places that invite their customers to browse and explore the wide range of works that are available to them. This law threatens the freedom to browse freely.î It is already illegal to sell ìharmfulî material to minors in Michigan and most other states. But the new Michigan law goes beyond the law of any other state by requiring booksellers to prevent any possibility that a minor can examine ìharmfulî works, including novels and works of non-fiction that do not contain pictures. Violations are punishable by up to two years in jail and a fine of up to $10,000. The measure was signed into law by Governor Jennifer Granholm on November 5 and went into effect on January 1. Finan said the new law is unconstitutional because it would make it difficult for adults and older minors to obtain books, magazines and music that they have a First Amendment right to purchase. ìIf booksellers can be sent to jail for two years because a kid picks up the wrong book, they will have no choice but to protect themselves by rigidly restricting what their customers can see,î he said. Booksellers will either have to segregate ìharmfulî material in an ìadults onlyî section or to wrap it in plastic. In addition, they will be forced to impose these restrictions on books and other materials that are ìharmfulî to the youngest minors, including romance novels, works relating to sexual education and health, photography and art books, and classic literary texts. In addition to ABFFE, the plaintiffs are the Freedom to Read Foundation, the Great Lakes Booksellers Association, six bookstores, the Association of American Publishers, the Comic Book Legal Defense Fund, and the International Periodical Distributors Association. Reported in: ABFFE Press Release, January 7. ©2004 American Library Association. This site is best viewed with Internet Explorer 6+
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