Category Archives: Technology

SCOTUS: Police Placing GPS Tracking Device on a Vehicle Without Warrant Violates the Fourth Amendment [or Does it?]

How about some good news on the civil liberties front to kick off the week for a change? Robert Barnes writing for The Washington Post reports that SCOTUS ruled 9-0 in United States v. Jones stating that the police placing a GPS tracking device on a person’s vehicle and tracking said vehicle over days, weeks, or months without a warrant violates the Fourth Amendment’s guarantee against unreasonable searches.

The Supreme Court ruled unanimously Monday that police must obtain a search warrant before using a GPS device to track criminal suspects. But the justices left for another day larger questions about how technology has altered a person’s expectation of privacy.

Justice Antonin Scalia wrote that the government needed a valid warrant before attaching a GPS device to the Jeep used by D.C. drug kingpin Antoine Jones, who was convicted in part because police tracked his movements on public roads for 28 days.

“We hold that the government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search’ ” under the Fourth Amendment’s protection against unreasonable searches and seizures, Scalia wrote.

[…]

Alito’s point was that it was the lengthy GPS surveillance of Jones itself that violated the Fourth Amendment and that “the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.”

“For such offenses,” he wrote, “society’s expectation has been that law enforcement agents and others would not — and indeed, in the main, simply could not — secretly monitor and catalogue every single movement of an individual’s car for a very long period.”

The only disagreement among the Justices was whether or not the decision went far enough to protect individuals in a 21st century world based on a 18th century law (i.e. the Fourth Amendment).

Hey, even a blind squirrel can find a nut once in awhile and in even rarer cases, 9 Supreme Court Justices.

***Correction/Further Analysis***
If you followed the link to The Washington Post article, you might notice that the parts I quoted don’t match up exactly. This is because the article has since been edited with a more complete explanation of what United States v. Jones really means. It appears that I put entirely too much trust into what was being reported in the media here and elsewhere (and I still haven’t gotten around to reading the opinion for myself).

Doug Mataconis (who is a lawyer; I am not) was the first to point out that the coverage of this ruling isn’t quite as good from a civil liberties perspective as the media would have us believe:

I think all you can really say is that, under circumstances of this case, the Court found that the use of the tracking device without a warrant was impermissible. As the majority opinion notes, however, the Government attempted to raise in their arguments to the Supreme Court the theory that the search was supported by reasonable suspicion and/or probable cause to believe that Jones was the leader of a drug gang. Under such a theory, the use of the tracking device would have theoretically been justified even without a warrant.

You can read a more detailed analysis from Doug here Outside the Beltway.

Doug also pointed me to this article by Orin Kerr at The Volokh Conspiracy post entitled “What Jones Does Not Hold”

It seems that I wasn’t the only one mislead about the true impact of this ruling. Even Radley Balko at The Agitator had to make some corrections to his post regarding this case and made reference to the same post by Kerr as well as an even more discouraging analysis from Tom Goldstein at SCOTUSblog.

We don’t go black… We try to turn on lights

We’re not going black today, over SOPA or PIPA.

In case you by some miracle hadn’t noticed it yet, tens of thousands of web sites around the country and around the world, are “going black” or putting up banners explaining that they are not available or there is no content today etc… In protest against the “Stop Online Privacy Act” and the “ProtectIP act”, which are currently (or were recently), being promulgated in congress.

We don’t have a problem with anyone who does. It’s important that people understand what SOPA and PIPA are (or were), and most folks are sadly unaware of the kind of stupid and harmful things that our government does.

Google and Wikipedia are two of the most important and most used sites on the net; and by participating in this protest, they will very certainly make a lot more people aware of this issue.

But “going black” isn’t what we do here.

We talk about political and social issues here; in particular about liberty and freedom. We try to inform people about the important issues, events, and principles of liberty and freedom; and then talk about them in as free and open a way as we can.

I personally think that going black would be entirely against what we are about here; and while it might help to draw more attention to the problem, it wouldn’t help us inform you, or help us begin the conversation about the issue.

… and of course, you can’t go to wikipedia day to find out about it…

So, I personally, would like to do something that is in the spirit of protesting the idiotic and harmful nature of these pieces of industry lobbying masquerading as legislation…

…And share a few things:

That’s the best explanation of why the freedom to share (within fair use of course, copyrights ARE important) is important; and why legislation like PIPA and SOPA are not only stupid and harmful, but entirely antithetical to the American system of ordered liberty.

And then there’s this piece by my friend (and bestselling author, buy his excellent books please) Larry Correia:

“for all of the people out there on the internet having a massive freak out about the government potentially damaging something they love… WELCOME TO THE PARTY.

You think this is something new or unusual? Nope. This is just about a topic that you happen to be familiar with. If you fall into that camp, I want you to take a deep breath, step back, and examine all of the other issues in the past that you didn’t know jack squat about, but your knee jerk reaction was to say “there’s a problem, the governement has to do something!” Well guess what? The crap the federal government usually comes up with to fix these problems is similar to SOPA. In other words, the legislation addresses a perceived problem by instituting a bunch of stupid overregulation and taking away someone’s freedom.

You think people need access to affordable medical care and shouldn’t be denied coverage? Well, you got used and we got the bloated ridiculous mess that is Obamacare. You saw a news report about how big business defrauded people and said congress should do something? Well, everyone in the business world got screwed because of Enron by completely useless new arbitrary crap laws, and a few years later we got into an even bigger financial crisis which the arbitrary crap laws we spent billions conforming to did nothing to prevent. No, because that financial crisis was caused by people saying that there was this huge problem that needed to be fixed, so more people who couldn’t afford to pay mortgages could still buy houses, and the government simply had to do something to fix this problem!

Any crisis… Any problem… You ask the feds to fix it, you get this kind of answer. Almost never do the laws fix the actual problem. Instead the government gets bigger and gains a few more powers and it doesn’t fix the issue. When the problem gets bigger, then the government gets bigger and gains a few more powers that actually make the problem worse. Oh look! Despite all of these laws the problem has gotten even bigger? Whatever should we do? Why, I know! Let’s pass an even bigger law that takes away more individual freedom and gives the government more control!
Repeat, repeat, repeat.

Any topic, any situation, any problem.

They address it, you lose freedom and they gain more control. Some of you are only offended today because this particular law hurts something you enjoy. The rest of the time? Screw it. You can’t be bothered to pay attention. Or worse, people like me who are up in arms over an issue are just cranks or anti-government crackpots.”

I was going to write something roughly similar to this, but Larry beat me to it… and I’d rather share what he wrote, because it’s good, and because I can.

At least for now…

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

A New Approach To “Government Research”

Over at Cato, Jim Harper responds to proponents of gov’t research that point to the products of that research as justification — they never really consider that such products would still occur via private-sector investment. He takes a bit of a swipe at IP policy in the middle, and in his discussion of the history of AT&T I got an idea:

To take the Internet as proof that the government is a necessary producer of research and innovation, you have to reject the scientific method. Unfortunately, there are rarely controls in public policy. We can’t find out what would have happened if government policy had taken a different course, so we don’t know anything more about who should fund research from the fact that government-funded research has produced good things in the past.

But what would have happened if U.S. public policy had taken a different course? I’ve thought about the impossible-to-answer question of where we would have been without DARPA and other government influences on telecom. What most people don’t consider, I believe, is the restraining influence the government-granted AT&T monopoly had on telecommunications for most of the 20th century. AT&T developed a “Teletypewriter Exchange” system in 1931, for example, but had no need to develop it, there being little or no competitive pressure to do so. (Its patent on attaching devices to phone wires undoubtedly helped as well, preventing anyone using AT&T’s wires for modem service.)

Had there been competition, I suspect that someone would have come up with the idea of packet-switched networks—that’s what the Internet is—before Leonard Kleinrock did in 1962. Kleinrock was a student at MIT—he wasn’t at DARPA, which didn’t get into packet-switching until about 1966. (Then again, MIT was almost certainly awash in government money—specifically military money—so there you go. Maybe we owe all the good things we’ve got to war, but I doubt it.)

So back when AT&T was a monopoly, they developed technology that preceded the internet for delivering data over phone lines, as well as owning (and enforcing) a patent on attaching devices to phone wires, which undoubtedly allowed them to prevent anyone else from capitalizing on data-over-phone-line ideas.

Some would say that this is evidence that government should have been financing this sort of invention so that it would be in the public domain (as TCP/IP eventually was). But there’s another angle to look at here:

Why doesn’t the government buy patents that are valuable but underutilized, and release them to the public domain?

Think of it this way: if the US Patent Office had purchased AT&T’s patents back in the 1930’s and released them into the public domain, they could have been capitalized by a broad swath of companies and perhaps kickstarted development of the internet far before DARPA ever got a hand in it (of course mainstream personal commercial user acceptance probably would have relied on availability a low-cost PC’s just as we saw beginning in the late 90’s). AT&T’s monopoly over phone service gave them no profit incentive to utilize their own invention, but getting it into the public domain could have created a competitive market where none existed before.

I see a couple of potential advantages to this idea over that of government research:

  1. Less of a politicized “government picking winners and losers” model for government research. Instead of independent researchers seeking government grant money for things that have not been invented (and for which commercial development is outside their reach as pure scientists), they might need to seek private funding from investors who expect to reap benefits from selling those patents to the USG.
  2. Give an extra incentive for US companies to continue R&D investment in more “speculative” technologies. For technologies which may be valuable but for which the commercial viability is a more long-term play, or for technologies which might be valuable but prove not to be relevant to the business model of the company in question, they can still earn some return on that sunk R&D investment.
  3. Development of an individual technology-creation boom. Many individuals with good ideas who *could* patent their idea but have no desire or capability to create a company to monetize their idea forego the patent process because there is no return on their time. All of these ideas are lost to the world, at least for a time.
  4. Perhaps most importantly, this is the government paying for results rather than promises. As I suggested in this December 2006 post, I believe that incentivizing the private sector to invent might be a more efficient model in general than in purchasing research on the front end.

Now, there are undoubtedly issues with this proposal.

First and foremost, the fear would be that companies would merely use this as a vehicle to offload shitty patents onto the government — just another form of corporate welfare. And I do suspect they’d try. My answer to that is twofold. One, of all the departments of government, I think the Patent & Trademark Office is widely regarded as one of the less politicized. If procedures are put into place to present them with these patents “blindly”, i.e. so that they cannot know the identity of the inventor, I would suspect that we can at least get their fair assessment of an inventions value in an objective manner. Second, is that one man’s trash is another man’s treasure. For a company that is not capitalizing on a patent, they understandably think it’s worthless — that doesn’t mean that it’s so. There might be some legitimate diamonds in the rough here.

Second, the fear would be that this would merely be government picking winners and losers on a different stage. I.e. if businesses can’t reap value from their patents, and if government boards can’t reliably pick which research programs are of most benefit, how can they do so with patents? This is a pretty typical government problem. Again, I think putting this in the hands of the PTO might help, but efficiency and waste is always a concern.

Third, the fear is that companies simply won’t sell. Patents — even useless ones — are important legal tools. When Novell sold off a patent portfolio in late 2010, the value worked out to be roughly $510K per patent. When Google announced an intended deal to acquire Motorola Mobility last year, the value of the purchase conveniently was set at $12.5B — equal to Motorola’s 24,500 patents multiplied by $510K. When Nortel went bankrupt and auctioned off their patent portfolio last summer, the total value of their 6,000 patents averaged $750K apiece. There may be some positive value in owning some of those patents, but there’s incredible potential negative value in NOT owning enough patents to countersue your competitors if they decided to engage in an IP war. For big companies, a robust patent portfolio is the international diplomacy equivalent of a nation having nuclear capability — those without it won’t mess with you, and you make sure you play nicely with others who have it to avoid MAD. The key to this is not that there might be unused patents of inestimable value to the public that the companies aren’t even using, but rather that they may not be willing to sell *any* part of their IP portfolio. Unilateral disarmament has never been a popular strategy.

All that said, one of the questions we might be left with is simple: is it a better situation than we have now? Would the advantages gained be enough to justify a wholesale switch from our current strategy of paying for research, or perhaps even of diverting a portion of that budget to a program like this instead? I think it would — opening up the option to reward inventors (whether corporate or individual) for creating IP and then opening it up to the public domain seems like a great strategy for a continual boost to near-term growth. Pure scientific research has its place as a public good. Yet I think a case can be made that less “pure” inventions, being opened to the public domain, have a potential place at the table too, if not instead of, pure science.

My Take [So Far] On Google+

Having “grown up” online — a bit more than most of my contemporaries, as I had the techno-geek life of BBS’ing and AOHell in the early days of the internet — I’ve always had as much of an “online” presence as off. Today, this means that many of my personal hobbies, whether it be making/drinking beer, watching Purdue sports, arguing about politics, and making offensive jokes are activities coordinated and tailored to specific online forums as well. Homebrewing, Boilermaker football, and arcane anarcho-libertarian musings quickly bore the snot out of my friends and family in the offline world, and I’ve gotten in trouble with my wife more than once for those jokes.

In fact, it was the jokes that both largely made me effectively leave Facebook, and to be excited about the “Circles” feature in G+. Facebook has an inherently flat structure that ensures that if someone is your “Friend”, they can see essentially everything you post. This has two downsides:

1. It causes you to avoid friending certain people that you may not WANT to see every little thing about you.
2. It makes it bothersome to write about something that a small subset of your friends might be interested in, but others won’t care about.

I know that my beer friends don’t care about my political rants. My political friends don’t care about the status of my latest homebrew creations. I might occasionally want to highlight something I’ve written politically to my friends/family, but they certainly don’t want to be inundated with it. And my mother-in-law DOESN’T need to hear most of my jokes. And I’ve actively avoided friending many people in the political realm, many Purdue folks I know *only* through online sites, because I had no way to filter out the topics they wouldn’t be interested in. And I’ve especially never wanted to include coworkers or business contacts on Facebook, of course, because some of the discussions I get into would be completely inappropriate for a professional working relationship.

Circles changes that, and allows one to make a much LARGER social network that is more properly segmented based on common interests. And since people can reside within multiple circles at once, I don’t have to decide whether someone goes in “Friends” or “Beer”; they can be in both if we have that interest in common.

For that reason, I think G+ is a far better platform — for me — than Facebook.

However, Circles and “following” also allows a bit of Twitter-like asymmetric information dissemination that becomes very interesting. In essence, it’s like having your G+ account be both your Facebook social network and a more interactive Twitter account. With Twitter, the people who want to see my public status updates and the people who I choose to see don’t have to be the same. Ezra Klein has been talking about this quite a bit as G+ largely replacing Twitter for him, as he can reach the same sort of people, have more substantive discussions that can be more easily followed, but doesn’t have to necessarily subject his incoming stream to the rants of libertarian crackpots like myself.

Unfortunately, this becomes worlds less useful to me. The reason is simple — I have to tag posts as “Public” for those who are “following” me to see them. Most people who choose to “follow” me that I might not want to add to circles and have them appear in my timeline are in the political realm. I don’t particularly want to make my political posts “Public”, as that means anyone in my “Friends”, “Family”, “Beer”, or “Coworker” circles can automatically see them — creating the very annoyance factor that Circles are meant to avoid. This may be acceptable for Ezra Klein, who is a public figure due to his prominence as a political journalist, but not something that my non-political friends want to be subjected to from me.

For me, then, I’m left with a dilemma. Twitter is designed to be a broadcast medium, and it’s generally understood that you take the good with the bad if you choose to follow someone. Those who want to hear about my beer or politics know to ignore me during Purdue football games, just as I ignore many of them during specific things they tweet about that I don’t particularly care about. The etiquette of the medium is different than it is on Facebook, and people who will be annoyed by seeing more than three Facebook status updates a day from one person find that to be a slow day on Twitter.

I believe that the etiquette of G+ will more closely echo that of Facebook, which is why the different circles allow you at least filter certain people out of certain subjects. Thus, I can’t see myself sending many things out as “Public”. As a result, the very benefit of an asymmetric network is lost. What I’d really like is the ability to filter certain circles out of my ‘standard’ timeline — that way I can put all my asymmetric follows into a circle, and only go and have that circle show up in my timeline on demand. Otherwise, I simply won’t add those people to any circles, and since I essentially avoid “Public” posts most of the time, they won’t be able to see almost anything I write.

Google+ has the built-in structure to fundamentally change the way that we structure social networks. People I’d never have friended on Facebook previously (i.e. work colleagues, acquaintances, people I *only* know online, etc) now have a place and I can segment my message based on the audience likely to see it. That seems like it might be a game-changer, but needs a bit of tweaking before it’ll be 100% there so that people can figure out the new etiquette of the medium.

Quote Of The Day — MS-DOS Causes Improper Foreclosures

HuffPo is writing on a new Fed report that of 500 foreclosures they investigated, they couldn’t find a single one where the borrower was not significantly delinquent on payments. Thus, the Fed declared that no improper foreclosures occurred.

This doesn’t matter to those who think bankers are raping angels in their spare time, and who want to see the bankers riddled with papercuts and dropped in a vat of lemon juice. They want to stop foreclosures by any means necessary, and anything that casts doubt on the “paper trail” [as quite a lot of doubt already legitimately exists] looks good to them.

But this is a bit too far:

Citing Wednesday’s briefing, Rangan said the Fed review found numerous flaws in banks’ procedures and internal mortgage operations, and that the Fed’s bank examiners directed the firms to fix those problems.

One firm was found to be using Microsoft DOS, an outdated computer operating system, to handle home mortgages, Rangan said.

Oh no, DOS! Because Windows has just a strong track record of reliability, right?

As I’ve said before, I’m an engineer. I’ve spent a good portion of my career working with customers in the “embedded/industrial” market space. I’m talking about computer equipment that goes on oil rigs, locomotives, industrial control [assembly line] PC’s, etc. For most of these companies, things have to be nearing “outdated” to be well-understood enough to be trusted for the types of tasks they need to complete. And yes, some of those folks are still using DOS, though most have moved on to other RTOS products. Only where a major user interface is needed do we see people using an OS such as Windows, and even then they use a specific embedded version of Windows XP that allows more control over what is and is not included in the final package.

My dad always used to say, when talking about the fast pace of technology progression, that “a computer will never do *less* than it did when you bought it.” I.e. if you need something new that newer technology offers [including performance enhancement, of course], it might be time to upgrade. But it’s pointless to do so simply for its own sake, because something newer exists. Hearing that a bank is still using DOS doesn’t bother me at all, because they have a known, tested, proven system. It does exactly the same thing today that it did when it was purchased and installed. And as long as it meets the bank’s needs, there wouldn’t be any reason to upgrade.

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