President Barack Obama appears to look at the state secrets privilege in the United States the same way past Presidents have: it's a horrific injustice all the way up to the exact moment when it becomes available to them to use. For instance, after publicly campaigning against the Bush administration's use of state secrets exemptions to block litigation over the Patriot Act, he then leaned on them over something as relatively benign as copyright treaties. When it comes to state secrets, there are two related but slightly different issues at play. First, the government tends to be somewhat paranoid when it comes to classifying information in general. Second, but related, is the fact that state secrets are usually invoked domestically under the idea that United States citizens need to be protected against information coming out in the course of legal proceedings. What you end up with from those two issues is a government that keeps pertinent information hidden from its own constituency, often with that information being over-classified. The results of that intersection can often seem laughably paranoid.

Such is the case in a suit brought against the government by a Malaysian citizen, Rahinah Ibrahim, who had been a student at Stanford when she was denied air travel and detained in San Francisco in 2005, the apparent result of being on the no-fly list. U.S. District Judge William Alsup has sharply diverted from his peers in the case, challenging the government's assertion of state-secrets exemptions for evidence in the case.

In an order issued earlier this month and made public Friday, Alsup instructed lawyers for the government to "show cause" why at least nine documents it labeled as classified should not be turned over to Ibrahim's lawyers. Alsup said he'd examined the documents and concluded that portions of some of them and the entirety of others could be shown to Ibrahim's attorneys without implicating national security.

"After a careful review of the classified materials by the Court, this order concludes that a few documents could potentially be produced with little or no modifications to them," Alsup wrote in an April 2 order (posted here). "This order independently determines that in addition to correspondence between the parties, the two internal training documents are eligible for production to plaintiff’s counsel without implicating national security."

For the most part, Alsup's reasoning appears as banal as it does just. Several of the documents requested by Ibrahim's lawyers are antiquated to the point that their being revealed should pose no danger to national security. This would still be important, since judges as a rule shy away from challenging the White House over classification on national security grounds. Alsup offers his reasons for the challenge, stating that the documents are highly pertinent to the case, that the suit on constitutional grounds is proper, and that the information contained within the documents cannot be obtained anywhere else. In other words, any minimal risk in exposing the documents is trumped by Ibrahim's rights as the plaintif in seeking justice.

But the real highlight of how silly this all can get is that the government is attempting to include correspondence between Ibrahim and the government as classified. This, Judge Alsup points out, simply cannot be the case. Driving the hypocrisy of the matter home is that Attorney General Eric Holder filed a declaration in the case, supporting the states-secrets claims. Holder, it should be noted, is an appointee of President Obama, who promised reforms in the use of state-secrets.

In summary, past administrations were vilified for doing exactly what Obama is doing now. That is, unless Judge Alsup's challenge succeeds.

Tim Wu has an excellent article in the New Yorker, talking about the Computer Fraud and Abuse Act (CFAA), and specifically about how it was used against Aaron Swartz, declaring it the worst law in technology. Much of it covers similar ground to what we've covered before, but it also makes some really good points towards the end about how the Obama administration really needs to pull back on its reliance on the law in so many cases. First, he notes that simply relying on "prosecutorial discretion" is not enough, since we've seen that doesn't work:

The broadest provision, 18 U.S.C. §1030(a)(2)(c), makes it a crime to “exceed authorized access, and thereby obtain… information from any protected computer.” To the Justice Department, “exceeding authorized access” includes violating terms of service, and “any protected computer” includes just about any Web site or computer. The resulting breadth of criminality is staggering. As Professor Kerr writes, it “potentially regulates every use of every computer in the United States and even many millions of computers abroad.” You don’t have to be a raving libertarian to think that might be a problem. Dating sites, to borrow an example from Judge Alex Kozinski, usually mandate that you tell the truth, making lying about your age and weight technically a crime. Or consider employer restrictions on computers that ban personal usage, like checking ESPN or online shopping. The Justice Department’s interpretation makes the American desk-worker a felon.

When judges or academics say that it is wrong to interpret a law in such a way that everyone is a felon, the Justice Department has usually replied by saying, roughly, that federal prosecutors don’t bother with minor cases—they only go after the really bad guys. That has always been a lame excuse—repulsive to anyone who takes seriously the idea of a “a government of laws, not men.” After Aaron Swartz’s suicide, the era of trusting prosecutors with unlimited power in this area should officially be over.

He notes (as we have) that it doesn't look like Congress is really taking the matter that seriously yet. But he also notes that we don't have to wait for Congress. The DOJ should make it a stated policy not to interpret the law in such a ridiculous manner.

There is a much more immediate and effective remedy: the Justice Department should announce a change in its criminal-enforcement policy. It should no longer consider terms-of-service violations to be criminal. It can join more than a dozen federal judges and scholars, like Kerr, who adopt a reasonable and more limited interpretation. The Obama Administration’s policy will have no effect on civil litigation, so firms like Oracle will retain their civil remedies. President Obama’s DREAM Act enforcement policy, under which the Administration does not deport certain illegal immigrants despite Congress’s inability to make the act a law, should be the model. Where Congress is unlikely to solve a problem, the Administration should take care of business itself.

All the Administration needs to do is to rely on the ancient common-law principle called the “rule of lenity.” This states that ambiguous criminal laws should be construed in favor of a defendant. As the Supreme Court puts it, “When choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite.” So far, at least thirteen federal judges have rejected the Justice Department’s interpretation of the Computer Fraud and Abuse Act. If that’s not a sign that the law is unclear and should be interpreted with lenity, I don’t know what is.

Failing that -- and we've rarely seen a law enforcement agency take a weapon out of its own arsenal by choice -- Wu suggests that it's President Obama's responsibility to speak up and tell the DOJ to change its policies. He notes, "with just one speech, the President can set things right."

The internet is filled with strange memes, but a recurring theme seems to be asking a simple question about "who would win in a fight?" given various outrageous scenarios. Here are just a few amusing examples.

• President Obama was asked a question on Reddit: "Would you rather fight 100 duck-sized horses or one horse-sized duck?" Read up on the probable abilities of an enormous duck... because this question is bound to come up again (and again and again on Reddit). [url]
• "How many 5 year-olds could you take on at once?" was a question brought up a few years ago that got a bunch of people (mostly guys) thinking about how tough kindergarteners are. Generally, the answer should be approximately one or two times your weight's worth of 5yo's, depending on how athletic you are. [url]
• In a fight between a polar bear and a shark -- which animal would win? So far, there's evidence that a shark has actually eaten a polar bear, but that's not proof because the shark could have eaten a dead polar bear. [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post.

Right after the election, we noted the stories showing how Obama's technology advantage was impressive, while the get-out-the-vote technology that the Romney campaign built up appeared to fail spectacularly. However, there's an interesting post mortem to this, which shows how techies and politicians still usually come from very, very different worlds. The world class team of technologists who helped build up Obama's campaign tech are trying to release their work as open source -- but Democratic Party operatives are trying to keep it secret, believing (almost certainly incorrectly) that this gives them a proprietary advantage:

But in the aftermath of the election, a stark divide has emerged between political operatives and the techies who worked side-by-side. At issue is the code created during the Obama for America (OFA) 2012 campaign: the digital architecture behind the campaign’s website, its system for collecting donations, its email operation, and its mobile app. When the campaign ended, these programmers wanted to put their work back into the coding community for other developers to study and improve upon. Politicians in the Democratic party felt otherwise, arguing that sharing the tech would give away a key advantage to the Republicans. Three months after the election, the data and software is still tightly controlled by the president and his campaign staff, with the fate of the code still largely undecided. It’s a choice the OFA developers warn could not only squander the digital advantage the Democrats now hold, but also severely impact their ability to recruit top tech talent in the future.

The politicians who want to keep it locked up are making a huge mistake for a very large number of reasons that people who are steeped in technology understand. Let's list out some of the ways in which it's stupid to keep this secret:

1. It basically makes the technology useless. As one of the techies who worked on the project notes, the software "will be mothballed," meaning that four years from now it'll be useless. What the politicians see as keeping an advantage is really just squandering a useful framework.
2. It completely misunderstands how technology advances and works. No one expects software from today to be the same four years from now. By mothballing the tech, it will mean that the next campaign will effectively be starting from scratch. Open sourcing it would allow additional work to continue on this.
3. You can learn from others as well. The really shortsighted part is this insistence that open sourcing it "helps the other side." Again, what will be used four years (or even two years) from now will be quite different as the technology advances. And having it open sourced means that lots of folks can jump in and build on the tech in the meantime. And, yes, even Republican techies might work on it, and the Dems can learn from them as well.
4. Keeping it closed pisses off the techies, who will be less likely to contribute or join the team next time around.
5. If the Democrats believe they have stronger technologists, then next election they should still be able to make innovations faster than their opponents.
6. It quite possibly violates some open source licenses, since much of the code was built on open source software, some of which requires any additional work to also be open sourced.
7. Keeping the tech secret also means that other campaigns (beyond just elections) can't make use of the technology as well, which could actually hurt causes that the Democrats support.

In many ways this is the same old battle we've seen from legacy companies vs. more open upstarts for years. The legacy players think their advantage is in keeping the code secret. The upstarts know that's wrong: the pace of innovation and the rate of change means that by being open you can better keep up and do more. Keeping it closed guarantees stagnation and falling behind.

As we've discussed in the past, works created by the federal government are automatically in the public domain under section 105 of US copyright law:

Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.

So... that would suggest that musical works created by the federal government should be in the public domain, right? And... according to the Times of London, the performance of the Star Spangled Banner by Beyonce at President Obama's inauguration, was actually pre-recorded by the Marine Corp. Band, and then lip synced by Beyonce. Last we checked, the Marine Corp. Band is a part of the US government, meaning that recordings it creates should be in the public domain. So... is that recording in the public domain? The good folks at MuckRock have decided to find out by filing a Freedom of Information Request for the backing track.

This is a request under the Freedom of Information Act. I hereby request the following records:

A copy of the backing track used during Beyonce's Inauguration performance, as well as copies of other backing tracks created in preparation for Inauguration events, whether or not they were actually used.

The existence of these documents was disclosed by a spokeswoman for the Marine Corp Band to The Times of London

The performance by Beyonce could still be covered by copyright, since she is not an employee of the government, but that backing track almost certainly should be in the public domain. Of course, it's unclear to me if, even if the track is in the public domain, the federal government has an obligation to hand it over as part of FOIA request, but it seems like it's at least reasonable to ask.

In the middle of a much larger speech introducing his "Gun Violence Reduction Executive Actions," Obama threw in a little something for the videogame crowd:

Congress should fund research into the effects that violent video games have on young minds.

While it may seem like a shot across the bow of videogames to score some cheap political points, what Obama actually has in mind is a bit more subtle. (Make no mistake, though: this subject wouldn't have been broached if not for the Newtown shooting.)

Conduct research on the causes and prevention of gun violence, including links between video games, media images, and violence: The President is issuing a Presidential Memorandum directing the Centers for Disease Control and scientific agencies to conduct research into the causes and prevention of gun violence. It is based on legal analysis that concludes such research is not prohibited by any appropriations language. The CDC will start immediately by assessing existing strategies for preventing gun violence and identifying the most pressing research questions, with the greatest potential public health impact. And the Administration is calling on Congress to provide $10 million for the CDC to conduct further research, including investigating the relationship between video games, media images, and violence.

Two things worth noting in this paragraph:

The "Presidential Memorandum" lifts a moratorium on this sort of research by the CDC, something that has been in place for over 15 years. Kyle Orland at Ars Technica explains:

[T]he federal Centers for Disease Control have been prohibited from funding studies that "advocate or promote gun control" since 1996, when Congress cut the $2.6 million the organization had been using to fund gun injury research through its Center for Injury Prevention and Control. Further moves since then have prevented the CDC from even receiving federal crime data for gun research, and prohibited the National Institute of Health from doing gun violence research as well.

And why was this research prohibited? Depending on who you ask, it's either because the NRA didn't like guns being tied to injuries and death (Orland calls it a "chilling effect" brought on by Arthur Kellerman's study) or the study itself was severely flawed and skewed to fit the pre-existing bias of the director of the National Center for Injury Prevention and Control, which operated under the CDC's direction.

Secondly, the wording directs the CDC to focus on areas with the "greatest potential public health impact." The administration may namecheck current hot buttons like videogames and violent media, but as it's worded, the CDC has no instruction to start its work by assessing these areas. As Orland states, this one sentence is likely nothing more than a brief concession to the current political climate:

Making a brief mention of video game studies as a part of a $10 million funding request is a good way to pay lip service to these political concerns on both the left and the right without really making it a priority. If studying video game and media violence were actually a major focus of the president's gun control agenda, it would have a much more prominent place in both his remarks and his official funding requests. Instead, the real money the president is asking from Congress will go to more important things: $20 million for the National Violent Death Reporting System, $14 million for police and security training, $150 million for in-school mental health counselors, $30 million to develop school emergency management plans, and so on.

Overall, putting the CDC in charge is probably (in the parlance of government works) the "least worst" way to handle this. The CDC will have access to more mental health-related data than other existing entities, a factor that definitely needs to be considered. (But this factor also presents its own problems: it's entirely too easy to write off mass murderers as mentally defective. The idea of taking someone's life, much less multiple lives, is so repulsive to "normal" human beings that the kneejerk reaction is to blame it on mental illness. It's safe to say that normal people would never commit mass murder, but it's way too simplistic to assume that every perpetrator is mentally defective.) It should also have access to demographic and other environmental factors, which should give it a more rounded picture than the limited sample sizes and variables of smaller studies and surveys.

Another factor that makes the CDC a preferable choice is the fact that it's an existing agency. Turning this task over to a special committee would result in a room filled to capacity with appointees and their predispositions. (The argument can also be made that the CDC carries its own predispositions, but expecting a government directive, especially an executive order, to conjure up a completely impartial study is to show a level of faith the government simply doesn't deserve.)

Now, the downside.

Any conclusions the CDC comes to will be immediately suspect. No matter what it finds, the conclusions will be disputed. The presence or absence of a link between violent media and gun violence will only exacerbate the divide between both sides of the debate. To date, no link has been conclusively proven. This study's outcome will likely be more of the same. It's nearly impossible isolate people and "violent media" from the other factors that affect the equation. The CDC should be able to incorporate its existing knowledge in regards to risk factors, but the answers it comes up with will fail to satisfy everyone. Ultimately, it will change nothing, but it will have the power to inform government policy going forward and, depending on the political climate, it's likely that gossamer-thin correlation will be enough to justify legislation.

Then there's the tangled issue of gun control policy, something the CDC has waded into in the past. Again, any conclusions drawn will be contrasted against its history with the National Center for Injury Prevention and Control and its biased approach to the study of gun violence. (Particularly troublesome is a 1987 CDC report, in which the director of the NCIPC thought enough evidence existed to "confiscate all firearms from the general population" in order to prevent 8,600 homicides a year.) The administration has done a disservice to both groups (video game fans, gun owners) by making this study inseparable from a larger gun control proposal.

The best case scenario, like so much in government, is that nothing happens. The studies are proposed, the climate shifts and, like so much before it, it's discarded in favor of What's Ailing the Nation Now. While it would be interesting to see the CDC perform an in-depth study (especially if the data collected is made available to the public), the chance of a negative outcome (in terms of misguided legislation, etc.) is way too high.

On the whole, though, it is refreshing to see videogames treated as part of the media, rather than a wholly distinct scapegoat capable of destroying society on its own. Unfortunately, even with its rather brief appearance in the administration's set of proposals, it appears the government still wants to control media (as opposed to "the media") and this single paragraph could help rationalize unconstitutional measures.

The US government's "targeted strike" drone program has been around since George W. Bush's first presidential term. Despite being nearly a decade old, the program has largely operated in a gray area of legality, with no codified set of rules governing drone strikes. So, what does it take to get some guidelines applied to the executive branch-controlled remote-control merchants of death? The threat of having to turn control over to the "other side," apparently.

Facing the possibility that President Obama might not win a second term, his administration accelerated work in the weeks before the election to develop explicit rules for the targeted killing of terrorists by unmanned drones, so that a new president would inherit clear standards and procedures, according to two administration officials.

So, when the control is in your hands, it's ok to direct long distance killings without "clear standards and procedures." But, if the other guy is being handed the power, it's suddenly time to "develop explicit rules." This doesn't come across as genuine concern. It sounds more like a last-minute effort to hobble the program by throwing in a handful of cursory checks and balances. This quote from an anonymous administration official put its all in perspective:

“There was concern that the levers might no longer be in our hands,” said one official, speaking on condition of anonymity. With a continuing debate about the proper limits of drone strikes, Mr. Obama did not want to leave an “amorphous” program to his successor, the official said. The effort, which would have been rushed to completion by January had Mr. Romney won, will now be finished at a more leisurely pace, the official said.

Again, this sounds nothing like genuine concern about "doing the right thing" by implementing strict guidelines and otherwise easing the transition between presidents. It sounds more like "Well, if we have to give up this power, let's make it as limited as possible."

Now, maybe that's just the way I'm hearing it. But those sentences aren't very comforting, either. Rules -- explicit rules -- should already be in place. Now that Obama's safely back in office, the team's just going to ease off the gas pedal?

This isn't very surprising, considering the wall of secrecy surrounding the targeted strike program -- and how far away the program has drifted from its original purpose.

Despite public remarks by Mr. Obama and his aides on the legal basis for targeted killing, the program remains officially classified. In court, fighting lawsuits filed by the American Civil Liberties Union and The New York Times seeking secret legal opinions on targeted killings, the government has refused even to acknowledge the existence of the drone program in Pakistan.

But by many accounts, there has been a significant shift in the nature of the targets. In the early years, most strikes were aimed at ranking leaders of Al Qaeda thought to be plotting to attack the United States. That is the purpose Mr. Obama has emphasized, saying in a CNN interview in September that drones were used to prevent “an operational plot against the United States” and counter “terrorist networks that target the United States.”

No one's looking to declassify any information about this program anytime soon. The Defense Department and the CIA are pushing for "greater latitude" to carry out strikes. Other government officials have argued against the drone program, but to date, the administration seems willing to continue the program "as is," without returning it to its original focus. At this point, the targeted strike program has expanded to include strikes on militants not engaged directly with US forces. Acceptable targets also include individuals unknown to those requesting or clearing the strikes.

Then there's the matter of strikes against people whose identities are unknown. In an online video chat in January, Mr. Obama spoke of the strikes in Pakistan as “a targeted, focused effort at people who are on a list of active terrorists.” But for several years, first in Pakistan and later in Yemen, in addition to “personality strikes” against named terrorists, the C.I.A. and the military have carried out “signature strikes” against groups of suspected, unknown militants.

Originally that term was used to suggest the specific “signature” of a known high-level terrorist, such as his vehicle parked at a meeting place. But the word evolved to mean the “signature” of militants in general — for instance, young men toting arms in an area controlled by extremist groups. Such strikes have prompted the greatest conflict inside the Obama administration, with some officials questioning whether killing unidentified fighters is legally justified or worth the local backlash.

As the New York Times article points out, the US is setting the precedent for countries currently developing their own drone programs. And that precedent seems to be that these programs should be operated autonomously, secretly and unhampered by explicit rules and regulations. The same country that has decried targeted killings by other countries (namely, Israel) is now showing the rest of the world that all you really need to pull off long distance assassinations is the will and the way. 

Obviously some of the following may be biased by the hindsight view of who won and who lost -- but it's fascinating to see two very, very different stories emerge about the technology/data teams involved in the two major party presidential campaigns. Right after the election, Time published an account of a massive and extremely sophisticated datacrunching team working to get President Obama re-elected.

The new megafile didn’t just tell the campaign how to find voters and get their attention; it also allowed the number crunchers to run tests predicting which types of people would be persuaded by certain kinds of appeals. Call lists in field offices, for instance, didn’t just list names and numbers; they also ranked names in order of their persuadability, with the campaign’s most important priorities first. About 75% of the determining factors were basics like age, sex, race, neighborhood and voting record. Consumer data about voters helped round out the picture. “We could [predict] people who were going to give online. We could model people who were going to give through mail. We could model volunteers,” said one of the senior advisers about the predictive profiles built by the data. “In the end, modeling became something way bigger for us in ’12 than in ’08 because it made our time more efficient.”

Early on, for example, the campaign discovered that people who had unsubscribed from the 2008 campaign e-mail lists were top targets, among the easiest to pull back into the fold with some personal attention. The strategists fashioned tests for specific demographic groups, trying out message scripts that they could then apply. They tested how much better a call from a local volunteer would do than a call from a volunteer from a non–swing state like California. As Messina had promised, assumptions were rarely left in place without numbers to back them up.

Compare that, then, to the data driven efforts on the Romney side. First, the campaign ignored all the public polls that turned out to be fairly accurate and plugged in a bunch of their own assumptions when looking at key variables, all of which made them believe they had a stronger position than it turned out they had. But, much more interesting are the stories coming out about ORCA, the Romney campaign's secret computerized weapon in the "get out the vote" effort. It's like the exact opposite of the description of the Obama campaign's data tool.

Romney campaign volunteer John Ekdahl's description of how poorly planned out ORCA was is a must-read. It really sounds like the team there didn't do much testing, and failed to consider how the system would work under load. From the explanations, it also sounds like they didn't do much usability testing, or even think through some basic use cases. It sounds as though either the Romney team didn't think ORCA was ready or they didn't want to "reveal" it until the last minute to avoid tipping their hand to Obama's campaign. The night before the election, they sent volunteers who were supposed to be poll watchers a huge PDF with instructions -- expecting them to print it out, which isn't so easy for everyone these days. They also forgot to tell them they needed to get and bring their "poll watcher certificate" to polling places. And they didn't release the actual app until 6am on election day, giving volunteers no time at all to learn how it worked (or to report bugs).

Now a note about the technology itself. For starters, this was billed as an "app" when it was actually a mobile-optimized website (or "web app"). For days I saw people on Twitter saying they couldn't find the app on the Android Market or iTunes and couldn't download it. Well, that's because it didn't exist. It was a website. This created a ton of confusion. Not to mention that they didn't even "turn it on" until 6AM in the morning, so people couldn't properly familiarize themselves with how it worked on their personal phone beforehand.

Next, and this part I find mind-boggingly absurd, the web address was located at "https://www.whateveritwas.com/orca". Notice the "s" after http. This denotes it's a secure connection, something that's used for e-commerce and web-based email. So far, so good. The problem is that they didn't auto-forward the regular "http" to "https" and as a result, many people got a blank page and thought the system was down. Setting up forwarding is the simplest thing in the world and only takes seconds, but they failed to do it. This is compounded by the fact that mobile browsers default to "http" when you just start with "www" (as 95% of the world does).

By 2PM, I had completely given up. I finally got ahold of someone at around 1PM and I never heard back. From what I understand, the entire system crashed at around 4PM. I'm not sure if that's true, but it wouldn't surprise me. I decided to wait for my wife to get home from work to vote, which meant going very late (around 6:15PM). Here's the kicker, I never got a call to go out and vote. So, who the hell knows if that end of it was working either.

A different report points to similarly massive problems with other aspects of ORCA, including handing out the wrong PINs, making the app useless in Colorado (and possibly elsewhere):

Then at 6PM they admitted they had issued the wrong PINs to every volunteer in Colorado, and reissued new PINs (which also didn't work). Meanwhile, counties where we had hundreds of volunteers, such as Denver Colorado, showed zero volunteers in the system all day, but we weren't allowed to add them. In one area, the head of the Republican Party plus 10 volunteers were all locked out. The system went down for a half hour during peak voting, but for hundreds or more, it never worked all day. Many of the poll watchers I spoke with were very discouraged. Many members of our phone bank got up and left.

Once again, I'm sure that the Obama system wasn't nearly as perfect and all-knowing as the Time article describes. Nor was the Romney system a total disaster as described in those links -- but it is fascinating to see these stories emerge following the election. Given the Obama win, along with these stories about that datacrunching effort and the worldwide reverence towards Nate Silver, you can bet that everyone gunning for the 2016 nomination is going to spend some time trying to build up a killer technical/data team.

Piracy is usually the scapegoat trotted out by various declining industries and pointed at angrily for supposedly single-handedly destroying them. Generally, it's content creators and various gatekeepers (mostly the latter) doing most of the pointing (and lobbying). In the normal scheme of things, the gatekeepers are all on the same side, united against filesharers. That's the status quo.

For the first time in memory, one entity has accused another in the same field (politics) of using piracy as a weapon. In this strange case, conservative filmmakers are accusing Obama supporters of uploading the full version of their documentary, "2016: Obama's America," to YouTube in order to harm box office sales.

The film, the second-highest-grossing political documentary in U.S. box-office history, has made $32 million domestically since opening in mid July but took in only $938,000 during the recent weekend for a per-screen average of $771, down 27 percent from $1,060 per screen in the previous weekend, according to BoxOfficeMojo. Overall, the movie's box-office dropped 53 percent in the most recent weekend compared with the previous one, its largest decline since opening 10 weeks ago.

While such a drop isn't unusual for a movie during the course of a week -- especially when the theater count dropped from 1,876 to 1,216 -- filmmakers nevertheless say box-office results were artificially depressed for two reasons: a disinformation campaign spreading the false rumor that Fox News Channel would be showing the movie in its entirety Sunday and a pirated version of the film showing up on YouTube this weekend.

The filmmakers contacted the FBI about the possible piracy and the user who uploaded the full film has taken it offline. In addition, mass emailings announced the (fake) news that Fox News would be showing the movie for free last Sunday. Many bloggers and websites ran with the story, but most have issued retractions.

The whole situation is a bit odd. Obama's official website issued a post criticizing the film and one of its creators, Dinesh D'Souza, saying he has a “long history of attempting to add a veneer of intellectual respectability to fringe theories, conspiratorial fear-mongering and flat-out falsehoods.” One wouldn't normally expect the President (or at least, a high-ranking spokesperson) to respond to a clearly political documentary. Perhaps the fact that "2016: Obama's America" is now the second-highest grossing political documentary added a bit of pressure.

However, while it's clear that some sort of misinformation campaign took place, it's a stretch to lay the dropoff in ticket sales on the "dirty tricks" of Obama supporters. It's fairly common for movies to experience large dropoffs in ticket sales from week-to-week. It's also fairly common for movies to get pirated. The other argument against a "concerted effort" to tank box office receipts is the timing. "2016:Obama's America" has been in the theaters 10 weeks and is due for a DVD release in October. As Zac Gille at Alt Film Guide asks: "Why now? Why not two months ago?"

“The reports of the movie appearing on Fox before the election are completely untrue," Dinesh D’Souza declared, "and we strongly suspect that they are the result of dirty tricks by our opponents who spread this rumor in order to confuse the general public and keep them from going to their local theaters."

If so, what an idiotic waste of time on the part of D’Souza’s and 2016 Obama’s America‘s "opponents." After all, the 2016 movie is fast on its way out.

So, why on earth would anyone in his/her right (or left, as the case may be) mind want to keep people "from going to their local theaters" to watch a movie that so few moviegoers care about at this stage? If an organized anti-2016 Obama’s America effort truly exists, then those guys have arrived on the scene a little too late. They should have acted five weeks ago, when the 2016 movie began its initially popular expansion.

Even if it turns out that a few Obama supporters did mount an effort to tank ticket sales, it would be tough to separate any possible impact from the misinformation campaign from the normal sales decline of any theatrical release. If anything, the piracy and misinformation plan backfired as the particularly loud response from the filmmakers can't help but draw more attention to the 10 week old film. Not only that, but uploading the movie to YouTube where it could be watched for free drives more viewers (and potential voters) to the film itself, a side effect the film's (alleged) opponents couldn't possibly have intended. However this turns out, we have a new tactic to add to the piracy pantheon -- piracy as political sabotage.

Even as we're encouraged by the direction of the latest cybersecurity bill (with significant caveats), lots of folks have been asking from the beginning for two things: an end to "Hollywood-style" FUD claims of planes falling from the skies, and a clear statement on what existing laws make the kind of information sharing the government desires impossible today. President Barack Obama took to the Wall Street Journal Op-Ed pages today to explain why we need cybersecurity legislation... and unfortunately he failed on both accounts. The opening part is positively cinematic:

Last month I convened an emergency meeting of my cabinet and top homeland security, intelligence and defense officials. Across the country trains had derailed, including one carrying industrial chemicals that exploded into a toxic cloud. Water treatment plants in several states had shut down, contaminating drinking water and causing Americans to fall ill.

Our nation, it appeared, was under cyber attack. Unknown hackers, perhaps a world away, had inserted malicious software into the computer networks of private-sector companies that operate most of our transportation, water and other critical infrastructure systems.

He goes on to point out that some of the things mentioned have "already happened," except that's not quite true. It is true that some hackers accessed systems they shouldn't have had access to, but it's not clear if they were ever able to actually do any damage. Here's Obama's summary of the details:

Last year, a water plant in Texas disconnected its control system from the Internet after a hacker posted pictures of the facility's internal controls. More recently, hackers penetrated the networks of companies that operate our natural-gas pipelines

What's amusing is that the story in Texas came about because a hacker was trying to show that the feds were ignoring and downplaying threats to critical infrastructure. From the details, it looks like the system was vulnerable because of poor password choices, and the stupid decision to connect the system to the internet. So the fact is that "disconnect its control system from the Internet" is the solution. Not more laws. Meanwhile, the story about targeting natural-gas pipelines involved some basic social engineering (spear phishing) rather than any technical hackery. In both cases, the issue appears to be the same: critical infrastructure like that which controls the functioning of water treatment plants and gas pipelines shouldn't be connected to the internet.

But do we need a 211-page law to share information just to recognize that?

The bigger problem is that while the President's Op-Ed highlights how we want to avoid the cinematic story he tells at the beginning, where it fails is that it never explains why the kind of information sharing he's talking about is blocked today. Which rules and regulations are blocking that from happening? No one seems to want to say. Instead, we get legislation that just assumes there must be regulations blocking information sharing and wipes them all away.

We appreciate that Obama says that he'll veto any bill that doesn't include strong privacy and civil liberties protections, but we should never be passing legislation based on made up scary stories.