Last year, we noted that Japan had put in place ridiculously draconian copyright laws that criminalized unauthorized downloads, DVD backups and even watching infringing YouTube videos in some cases. And, of course, what good is a law if it's not used? So, Japanese law enforcement apparently went on a big raid, searching 124 locations and arresting 27 people. Those arrested may face between two and ten years in jail, because that's a reasonable punishment for sharing something. I don't see how this makes anyone respect copyright any more, or gives anyone any additional incentive to support the legacy players who are using this system to put fans in jail.

India's somewhat schizophrenic relationship with privacy and freedom of speech has been discussed here before. The Indian government, on one hand, seems to want to do the right thing and safeguard its citizens from censorship and surveillance... but only up to a point. Once the going gets rough (i.e., outbreaks of violence, demonstrations), the government begins ramping up its surveillance and cracking down on free speakers.

Given this background, it's a bit surprising to hear that India has only just recently chalked up its first Twitter-related arrest. After all, the UK and the US have been doing it for years already. The person on the receiving end of this unfortunate record-setting event made the mistake of criticizing a politician (of course).

On 20 October, he (Ravi Srinivasan) posted a tweet to his 16 followers saying that Karti Chidambaram, a politician belonging to India's ruling Congress party and son of Finance Minister P Chidambaram, had "amassed more wealth than Vadra".

He was alluding to Robert Vadra, son-in-law of Congress party chief Sonia Gandhi, who was at the centre of a political row after allegations over his links with a top Indian property firm.

This message ("got reports that karthick chidambaram has amassed more wealth than vadra") went out to all of 16 followers and somehow found its way to Karti himself, who responded like anyone else would when mildly insulted: by contacting law enforcement...

Karti Chidambaram (@KartiPC) did not take the tweet in good humour and filed a police complaint on 29 October.

… which immediately responded with the sort of speed reserved for appeasing angry politicians.

They arrested Mr Srinivasan early next morning, charged him under Section 66A of India's Information Technology [IT] Act, and demanded 15 days of police custody.

Srinivasan's single allegation could have been addressed through India's libel laws, but since that route takes time and money, the offended politician instead used the police department to take care of the "problem" by using the "sweeping power" of Section 66A of the IT Act of 2000.

[Section 66A] can send you to jail for three years for sending an email or other electronic message that "causes annoyance or inconvenience".

On the face of it, this protects citizens against online harassment.

In reality, the law is more often used by the state as a weapon against dissent. In each such case, police action has been swift and harsh.

In April, the West Bengal government led by Chief Minister Mamata Banerjee used Section 66A against a teacher who had emailed to friends a cartoon that was mildly critical of her.

Loosely worded laws, ostensibly designed to "protect" citizens, usually devolve into tools of censorship. For some strange reason, those with the most power are the ones who feel the most "threatened" by open criticism and dissent. It's little wonder that legislators are more than willing to push through open-ended "cyberlaws" that can be bent to fit any situation. The end result is this fact, which is perhaps least surprising of all:

And, interestingly, Section 66A has never been used against politicians.

To Srinivasan's credit, he refused to back down from his statement. In addition, his arrest and subsequent appearance on television led to him gaining another 2,300 followers, many of whom are wondering if his arrest was tied to his anti-corruption campaigning. Despite the public support of the arrested tweeter, the politician behind his arrest remains unrepentant, tweeting out this amazing statement in his own defense:

"Free speech is subject to reasonable restrictions. I have a right to seek constitutional/legal remedies over defamatory/scurrilous tweets."

There's nothing "reasonable" about arresting someone rather than following the "constitutional/legal remedies" set up by India's libel law. This is simple thug tactics being deployed by someone operating without fear of reprisal. Section 66A needs to be cleaned up if freedom of speech and privacy are going to be protected, rather than just paid lip service at convenient intervals.

Last month we wrote about a new copyright law in Japan whose punishments seemed so disproportionate it was hard to take it seriously. For example, downloading unauthorized copies or backing up content from a DVD were both subject to criminal penalties. According to this story from Daily Yomiuri Online, it looks like it's no joke:

The Metropolitan Police Department arrested Yoshiaki Kaizuka, 43, an executive of Chiyoda Ward publisher Sansai Books Inc., and three other company employees on suspicion of violating the Unfair Competition Prevention Law, and sent papers on the firm to the Tokyo District Public Prosecutors Office. According to a senior police official, these are the nation's first arrests over the distribution of software to remove copy protection.

And their terrible crime? Allegedly selling a book that told people how to make backup copies of DVDs. That, of course, would involve circumventing the trivial copy protection on DVDs, which was enough to trigger the arrests, apparently. But as a post on Wired.it points out, if publishers can get into trouble under the new law so easily, so might others:

It's interesting to note that Japanese cyber Police could arrest the Amazon Japan CEO too as the online giant is selling a lot of magazines, books and software packages for DVD copy and ripping: exactly what put in trouble Sansai Books staff.

The same post notes that many GNU/Linux distributions come with the libdvdcss library which similarly allows the DRM system to be circumvented so that the DVD can be played, and would therefore fall foul of the new copyright legislation. So does the Japanese government plan to go after all the Web sites offering such software, and all the users?

The current action probably doesn't presage a massive crackdown on every infringing use, since that would involve arresting a significant fraction of the Japanese population. It's more likely to be an attempt to put the frighteners on people in the hope that everyone will stop downloading files and cease making backups. As we know from similar situations, that may work for a few months. But once things die down, people will go back to doing what they did before until the next time the Japanese authorities decide to make an example of someone, and the whole pointless cycle begins again.

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We've had a number of stories lately about people being arrested for filming the police. Thankfully, two court rulings have suggested that such actions are perfectly legal.

Of course, what good is that when the police are coming up with any reason possible to arrest people. Boing Boing points us to a story of a police officer in Atlanta who arrested a disabled woman after throwing her to the ground, after she refused to move from the chair she was sitting on. When she refused to move, the officer grabbed her wrist and twisted her arm, causing her to fall to the ground, injuring her shoulder in the process. After being taken to the hospital, she spent the night in jail for "disorderly conduct." For sitting in a chair.

The Atlanta Journal-Constitution report notes that a police review board reviewing the case found that she was falsely arrested, and also noted that the officer in question had made 38 arrests over a five-month period -- with 27 of them being similar charges of "disorderly conduct." They noted that the 27 arrests were "three times the amount made by two other officers that patrol the same area, during the same shift." All of this suggests an officer abusing his power, by simply claiming "obstruction" for anyone who doesn't follow his commands, even if there's no legal basis for them. The board recommended that the officer, Kenneth Thomas, be disciplined. To date, the police department has done nothing.

There are, of course, always stories of police abusing their power, but it's for these reasons that the right to film police in their activities is important. Good and honest police officers (of which there are many) should support such things. If they're doing their job within the confines of the law, they should be happy to be filmed or photographed.

Ah, the bizarre legal results of confused courts and confused laws. Four of the people arrested in the UK and accused of being a part of the not-actually-a-group Anonymous last week won a small part of a court battle. Prosecutors apparently had asked the court to bar the four from using Twitter or other social networking and chat services, such as TinyChat, arguing that "Anonymous as a group continues to be active." The court decided that it would not issue such a complete ban, though it had already blocked them from using IRC. Instead, it said that they could continue to use social networking and chat programs... but not use their existing online personas. It is, therefore, somewhat ironic that one of the people in question used his real first name as his online persona previously:

Peter David-Gibson, aged 20 from Hartlepool, who went by the online nickname “Peter”

Yes, you read that right. A guy accused of being Anonymous, but who used his real name online, can now no longer use his real name... because he may have been a part of Anonymous. That makes sense.

Following on the news of a court in Massachusetts stating, clearly, that arresting someone for recording the police is a 1st Amendment violation, you'd hope that we'd start hearing fewer such stories. And yet, as Nick Burns alerts us (followed by a few more of you), over in Illinois, a guy named Michael Allison appears to be facing 75 years in prison for recording the police. Similar to other cases, the police charged him with illegal eavesdropping under an Illinois state law -- in this case, five felony counts, each of which could get 15 years in prison. Even worse, the Illinois Assistant Attorney General is arguing that there is no such thing as a right to film the police. Shouldn't there be a rule that if you're totally ignorant of basic Constitutional rights, you don't get to be Attorney General of anything? The Allison case is particularly nasty. It seems clear that it's a vindictive response to the fact that Allison challenged a fine he got for working on unregistered cars on his mother's property. As happens all too often in these types of cases, the prosecutors have been offering Allison plea bargain deals, and I'd imagine they'll keep doing that as public pressure gets stronger. It's the only way to save face against a ridiculous prosecution. Allison is refusing to accept any plea deal.

Also, if you watch the video above, it really shows the kind of chilling effects these arrests have. In the middle of the video, the news reporter comes across some law enforcement officials and asks them some questions, but the station's lawyers refuse to let the reporter play the audio on air... because it might violate the very same law on which the reporter is reporting. Later on, they do show some law enforcement officials -- including the Assistant AG mentioned above -- but only because they believe there's an exception to the law for journalists "at public hearings."

The ruling in Massachusetts doesn't directly apply here, as these are different circuits, but that doesn't mean the court can't or won't pay attention, and I'm sure Allison's lawyers will highlight the Glik ruling in court. Hopefully, the Illinois court finds the logic compelling.

We've had a lot of stories this year about police arresting people for filming them. It's become quite a trend. Even worse, a couple weeks ago, we wrote about a police officer in Massachusetts, Michael Sedergren, who is trying to get criminal wiretapping charges brought against a woman who filmed some police officers beating a guy. This officer claims that the woman violated Massachusetts anti-wiretapping law, a common claim from police in such situations.

Segederin may have been better off if he'd waited a couple weeks for an appeals court ruling that came out Friday, because that ruling found that arresting someone for filming the police is a clear violation of both the First Amendment and the Fourth Amendment of the Constitution. How the case got to this point is a bit complex, but basically, a guy named Simon Glik saw some police arresting someone in Boston, and thought they were using excessive force. He took out his camera phone and began recording. The police saw that and told him to stop taking pictures. He told them he was recording them, and that he'd seen them punch the guy they were arresting. One officer asked him if the phone recorded audio as well and Glik told him it did. At that point, they arrested him, saying that recording audio was a violation of Massachusetts wiretap laws.

Even more ridiculous, they then had him charged not just with that, but also with disturbing the peace and "aiding in the escape of a prisoner." After realizing that last one didn't even pass the guffaw test, Massachusetts officials dropped that charge. A Boston court then dumped the other charges and Glik was free. However, he wanted to take things further, as he thought his treatment was against the law. He first filed a complaint with Boston Police Internal Affairs who promptly set about totally ignoring it. After they refused to investigate, Glik sued the officers who arrested him and the City of Boston in federal court for violating both his First and Fourth Amendment rights. The police officers filed for qualified immunity, which is designed to protect them from frivolous charges from people they arrest.

The district court rejected the officers' rights to qualified immunity, saying that their actions violated the First & Fourth Amendments. Before the rest of the case could go on, the officers appealed, and that brings us to Friday's ruling, which, once again, unequivocally states that recording police in public is protected under the First Amendment, and that the use of Massachusetts wiretapping laws to arrest Glik was a violation of his Fourth Amendment rights as well. The ruling (pdf) is a fantastic and quick read and makes the point pretty clearly. Best of all, it not only says that it was a clear violation, but that the officers were basically full of it in suggesting that this was even in question. The court more or less slams the officers for pretending they had a valid excuse to harass a guy who filmed them arresting someone.

The 4th Amendment bit may not be as widely applicable, since it mainly focuses on the Massachusetts wiretapping law. Here, the court notes that the law only covers audio recording in secret. But there is no indication that Glik did any of his filming in secret. It found the officers' arguments that he could have been doing lots of things on his mobile phone completely uncompelling, stating that the "argument suffers from factual as well as legal flaws."

The full ruling is embedded below, but a few choice quotes:

Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting "the free discussion of governmental affairs." Mills v. Alabama, 384 U.S. 214, 218 (1966). Moreover, as the Court has noted, "[f]reedom of expression has particular significance with respect to government because '[i]t is here that the state has a special incentive to repress opposition and often wields a more effective power of suppression.'" First Nat'l Bank, 435 U.S. at 777 n.11 (alteration in original) (quoting Thomas Emerson, Toward a General Theory of the First Amendment 9 (1966)). This is particularly true of law enforcement officials, who are granted substantial discretion that may be misused to deprive individuals of their liberties....

[....]

In our society, police officers are expected to endure significant burdens caused by citizens' exercise of their First Amendment rights. See City of Houston v. Hill, 482 U.S. 451, 461 (1987) ("[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers."). Indeed, "[t]he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state." Id. at 462-63. The same restraint demanded of law enforcement officers in the face of "provocative and challenging" speech, id. at 461 (quoting Terminiello v. Chicago, 337 U.S. 1, 4 (1949)), must be expected when they are merely the subject of videotaping that memorializes, without impairing, their work in public spaces.

[....]

The presence of probable cause was not even arguable here. The allegations of the complaint establish that Glik was openly recording the police officers and that they were aware of his surveillance. For the reasons we have discussed, we see no basis in the law for a reasonable officer to conclude that such a conspicuous act of recording was "secret" merely because the officer did not have actual knowledge of whether audio was being recorded.

While this case isn't over yet, it's still a huge victory for those arrested by police for filming them in action. It suggests such people can bring charges against the police for civil rights violations in taking away their First Amendment rights. A tremendous ruling all around.

A year ago, we wrote about a legal challenge concerning the constitutionality of a California law that requires police to collect and store DNA of anyone arrested (not convicted). A California state appeals court has now struck down the law, saying that it's a violation of the 4th Amendment. Considering all of the rulings lately that seem to have done away with the 4th Amendment, it's nice to see one going in the other direction, though I'm sure there's still going to be an appeal. And, unfortunately, the article linked above suggests that this ruling will likely get reversed on appeal, noting that a federal appeals court (third circuit) recently ruled on the same issue, and said it's fine to collect DNA from arrestees. Still, while this court ruling is still in effect in CA, we might as well quote the judge:

Even focusing on the DNA profile alone, the analogy to fingerprints is blind to the nature of DNA. Courts are well aware that—[r]ecent studies have begun to question the notion that junk DNA does not contain useful genetic programming material and that an intense debate on this subject is now taking place in scientific and legal communities. ... Like the DNA laws of almost every other state and federal law, the DNA Act is silent as to how long these specimens and samples may be kept, and it is reasonable to expect they will be preserved long into the future, when it may be possible to extract even more personal and private information than is now the case. ... [T]he Act places few restrictions on the law enforcement uses to which such information may be put. This raises questions both about the kind of personal and private information that may be derived from the DNA samples in the DOJ's possession, and the uses of that biometric data as scientific developments increase the type and amount of information that can be extracted from it. For example, commentators have discussed the potential for research to identify genetic causes of antisocial behavior that might be used to justify various crime control measures. Fingerprinting presents no comparable threat to privacy.

One hopes the CA Supreme Court or another federal court comes to its senses and agrees on this, but it seems unlikely.

These stories are becoming all too common. The police in Suffolk County, New York (where I grew up, actually), arrested a freelance news photographer who was videotaping the conclusion of a police chase. The police told him to "go away," while letting others stay. The guy, Phil Datz, moved further away, and started filming again... at which point he was arrested and charged with obstruction. After realizing that they had no case (and after the story got some press attention), it was announced that charges would be dropped and that "officers will undergo media relations training." But it's pretty ridiculous that such training is needed in this day and age. There's simply no way that police should be on the street if they believe it's illegal to film them in public.

One of the big stories of yesterday was the wide array of raids and arrests by the FBI in order to arrest people they claimed were members of "Anonymous," who took part in various denial of service attacks. All day yesterday the number of people arrested kept growing. I first saw three, then 12 and the final tally was apparently 16. Apparently the arrests are specific to the efforts to take down Paypal after Paypal decided to stop letting payment transfers go to Wikileaks. The specific charges are "intentional damage to a protected computer" and conspiracy.

Now, I've been very clear since Anonymous started this effort -- shutting down various websites using what is effectively crowdsourced distributed denial of service attacks -- that I think the strategy is really dumb. Does it get attention? Yes. But it turns parties doing questionable things into victims. It doesn't open any new eyes to the problems Anonymous should be trying to highlight. It just draws attention to the attacks themselves. It just seemed really likely to backfire -- especially as law enforcement and politicians focused in on the attacks, rather than the reasons for the attacks, and we're seeing some of that now.

But I can't deny that their efforts, combined with the slightly more sophisticated hacking efforts both from Anonymous and the spinoff group LulzSec and others, have actually had a much greater impact than I expected, especially with things like the hacking of HBGary and the release of ACS:Law files. As I noted last month when a bunch of people were arrested in Europe with claims that they were members of Anonymous, it's not clear to me that these arrests will have much of an impact, really. Will it scare off some random kid from becoming a scriptkiddie? Maybe at the margin there will be some. But the thing is, the types of folks who get involved with these things tend to overestimate their own abilities, and dramatically underestimate the likelihood of getting tracked down or caught.

And given the very distributed nature of the group (i.e., that it's not actually a group at all), it kind of makes you wonder if the arrests will only serve to get more folks jumping into the effort, perhaps for increasingly misguided reasons. As we've stated, governments and law enforcement seem to be taking a top-down approach to this, as if they were rounding up a criminal gang, not recognizing the distributed nature of this effort and how the focus is not criminal, but ideological. Arresting people just drives home their general fear of a world in which certain entities have too much power, leading more people to hit back.

I still don't think their strategy is smart. And I don't think it'll really create lasting positive change (in fact, the backlash could do the opposite). I also worry quite a bit about what happens when they suddenly rage against an innocent party or a group or an individual who really doesn't deserve their wrath. But, at the same time, I can't see how a big FBI crackdown does anything positive, either. It just serves to reinforce their general point. And, with something like the DDoS on Paypal, it seems a bit ridiculous to suggest that it really created that much "harm." It was, as many noted, a modern version of the sit-in. Yes, it probably was a nuisance and cost some people money, but it lasted for a short while and it's difficult to argue there was any lasting damage.

Defenders of law and order will insist "something" needed to be done, and will believe that these arrests will scare off people from the next round of attacks. I think those people are greatly underestimating how people who feel disenfranchised by the world, but sense power through their internet connection, react in such situations. Punishment for the sake of punishment may make sense to some people, but I prefer that the focus be on actually getting to the root of the problem, rather than trying to attack the symptoms in a way that makes the cause grow bigger.