Tuesday, 13 September 2011

SharePoint 2010 UI: custom action to launch "Move To" for a list item

Mood = :proud:

I've worked out how to create a custom menu action in a SharePoint 2010 list view that allows a user to move a single file (with meta-data intact) to another location similar to the functionality available in Site Content and Structure. In fact, I have made use of the Site Content and Structure page directly within a modal dialog. You can use SharePoint Designer to create a custom list item menu action. I won't go into detail here on how to do that as there is plenty of information available on the web. In the "Create Custom Action" dialog, tick the radio button next to "Navigate to URL:" and paste in the following javascript URL all on a single line (you will need to change the webId value to your own):

javascript:var listId='{ListId}'.toLowerCase().replace(/[{}]/g, ""); var webId='4836a39d-e154-4822-8826-8bcd5029cad2'; var dlg=SP.UI.ModalDialog.showModalDialog({ url: "{SiteUrl}/_Layouts/sitemanager.aspx?FilterOnly=1&SmtContext=SPList:" + listId + "?SPWeb:" + webId + ":&SmtContextExpanded=True&Filter=1&pgsz=100&vrmode=False", dialogReturnValueCallback: function(res, val) {location.reload(true);}}); var idString="SPListItem:{ItemId}?SPList:" + listId + "?SPWeb:" + webId; var item; var func; var doc; var win; setTimeout(func = function() {for (var i=0; i < window.top.frames.length; i++) {if (window.top.frames[i].location.href.indexOf("sitemanager.aspx") != -1) {win = window.top.frames[i]; doc = win.document;}}; if (doc == null || doc.forms.length == 0) {return setTimeout(func, 5000);}; for (var i=0; i < doc.forms[0].elements.length; i++) {var elem=doc.forms[0].elements[i]; if (elem.type == 'checkbox' && elem.id == idString) {item = elem; break;}}; if (item == null) {return setTimeout(func, 500);}; win.SmtSingleObjectMove(idString+":", false); item.checked=true; win.SmtGridSelectItem(item);}, 100); return false;

I had to use some setTimeout calls in order to ensure that the objects I was referring to were present. There is a particularly long timeout of 5 seconds that allows the dialog to hopefully complete rendering before it attempts to launch the popup with the tree view that actually selects the destination. All efforts to encapsulate this in the dialog's onload function met with failure. Perhaps one day I'll work that one out. Closing the dialog will refresh the view. This should work for any list or library in your SharePoint web application. Unfortunately there is no URL token corresponsing to the guid of the web application, so this will need to be provided as a hard-code value as I have done. I hope this is helpful to someone, as it took quite a lot of trial and error.

Wednesday, 7 September 2011

SharePoint 2010 - weirdness with custom list item edit form

I don't like SharePoint very much, but I'm forced to work with it in my software development role. A lot of what you might think of as simple functionality that could be expected out-of-the-box in a commercial content management system actually requires custom coded solution. Okay, I can do that. The trouble is though that the IT department at my company are quite strict about the provisioning of custom software. Given how buggy SharePoint Services is, I can't say I'm terribly surprised. The upshot is that any custom coded solution is discouraged in favour of some third party alternative if available. And either way, it needs to be justified. I tend not to bother with custom solutions. I often encounter weird problems with the out-of-the-box functionality though. Here's one.

I have a requirement to allow designated people to move a document from a staging document library to a permanent location once the document has been approved. After lots of mucking around I've found that the simplest way to do this is to create a custom edit form that allows input of only one item property. I've decided to use the Source URL property, since this is not actually useful in the context of the library. The plan is that there will be a workflow that kicks off whenever the document properties are changed and if there is a value for Source URL, the workflow will move the document to within that path (if legal) and then terminate. As an aside, I really wish the standard list views gave access to the file move functionality. You can't move a file from with a library, you can only send it to another location as a copy. But that's only one from an ever growing list of gripes, and not a very important one.

So anyway, I've found that this can work. However, when I (or the user) submits the custom edit form (which by the way cannot open as a dialog like the built in forms do), the result is that the document is output by the browser as an attachment. This causes a download dialog to open. I really don't want that to happen. It is confusing, to say the least. If I put the IsDialog=1 query string variable on the URL, this does not happen; however, I can't control that from actions and it shouldn't open as a dialog anyway. Also, the form does not close itself and redirect to the list as I'd expect it to. This seems to be a problem only with the custom edit forms. The default EditForm.aspx does not exhibit this strange behaviour, whether or not it is in dialog mode. I can't find anything about it on teh interwebs, so I thought I'd be the first to report it. If anything comes back, I'll be very surprised though.

Thursday, 1 September 2011

Twitter Joke Trial articles and related matters to move to new blog Arsehole Justice

I have decided to move all the Twitter Joke Trial and related blog posts over to my new collaborative blog, Arsehole Justice. It makes sense to have them there. I haven't yet begun to do this, but will begin soon. I will then reserve this blog for personal use. I'll try to keep the same links in place and use simple redirects. You might want to go and become a follower of that blog if you follow this one.

Tuesday, 30 August 2011

Arsehole Justice: Head of Humberside Police wonders why justice isn'...

Arsehole Justice: Head of Humberside Police wonders why justice isn'...: I read an article in The Independent today that quoted Tim Hollis , Chief Constable of Humberside Police. In the wake of the worst riots the...

Arsehole Justice: Shy 19 year old woman of good character could go t...

Arsehole Justice: Shy 19 year old woman of good character could go t...: If you've read some of our recent posts then you may be familiar with the case of 19 year old Hollie Bentley from Wakefield, West Yorkshire....

Arsehole Justice: Social media turns everybody into wankers.

Arsehole Justice: Social media turns everybody into wankers.: Social media turns everybody into wankers.

It's as simple as that. As soon as anybody gets involved in social media, they immediately tu...

Arsehole Justice: Hollie Bentley (Facebook Riot Girl) - case referre...

Arsehole Justice: Hollie Bentley (Facebook Riot Girl) - case referre...: The AJs just keep on rolling in. Today at Wakefield Magistrate's Court in West Yorkshire, a young woman named Hollie Bentley was told that h...

Arsehole Justice: Another Facebook related Communications Act convic...

Arsehole Justice: Another Facebook related Communications Act convic...: I will depart from cynicism just to say that I've never been more afraid for the health of free expression in Britain. This post is on the l...

Tuesday, 23 August 2011

Another Facebook Communications Act conviction. Sigh. FOI again.

There been another conviction under the Communications Act post UK riots, this time of an adult. Details here: http://www.walesonline.co.uk/news/wales-news/2011/08/23/man-jailed-for-four-months-over-facebook-attempt-to-start-riots-in-bangor-91466-29288008/. This time, a custodial sentence of 4 months was handed out. I've submitted a query to CPS Wales as follows:

To Whom It May Concern:

I am writing to you seeking information about a case recently heard in the Magistrates’ Court at Caernarfon concerning 21 year old David Glyn Jones of Bangor, Gwynedd who has been charged and convicted of an offence involving an update he placed on his Facebook page on the 9th of August. The case has been reported here <http://www.bbc.co.uk/news/uk-wales-north-west-wales-14631184> and here <http://www.walesonline.co.uk/news/wales-news/2011/08/23/man-jailed-for-four-months-over-facebook-attempt-to-start-riots-in-bangor-91466-29288008/>. It appears that the Facebook update was only live for 20 minutes.

Can you please explain why the Serious Crime Act 2007 was not applied as it had been in other similar cases around the same period of time? Also please give details about how the Full Code Test was applied in this case. I’m particularly interested in the evidential stage. Was the defendant advised by the CPS that he must enter a guilty plea under section 127 of the Communications Act 2003 if he did not deny sending the offending communication? Given the fast track nature of this prosecution, I am requesting an expedited response please. Email responses are preferred. Thank you.

Matt Flaherty
In this case someone actually turned the poor guy in, but I'm still concerned that once again the Serious Crime Act was dismissed in favour of the Communications Act, which suggests that the CPS felt there was no need to prove intent under the latter. Although 2 weeks is considerably more time to prepare a defence than the 2 days allowed the unnamed defendant in the Bury St Edmunds case, it's still really not enough. Section 127 of the Communications Act is not well understood. A court appointed public defender is unlikely to be in a position to give good advice. On a personal note, I have never been more afraid for the health of free expression in Britain.

Here are the contact details for CPS Wales:

CPS Wales
20th Floor, Capital Tower
Greyfriars Road
Cardiff CF10 3PL

Telephone: 02920 803800
Fax: 02920 803802

Email: wales.communications@cps.gsi.gov.uk

Sunday, 21 August 2011

FOI request to Suffolk CPS about Bury St Edmunds Facebook case

I've just submitted this Freedom of Information request to the CPS:

To Whom It May Concern:

I am writing to you seeking information about a case recently heard in the Magistrates’ Court at Bury St Edmunds, Suffolk about a 17 year old male defendant who has not been named and has been charged and convicted of an offence involving an update he placed on his Facebook page on the 9th of August. The case has been reported here <http://www.eadt.co.uk/news/west_suffolk_facebook_riot_teen_was_idiot_1_991897> and here <http://www.guardian.co.uk/uk/2011/aug/17/facebook-ban-teenager-encouraged-rioters?intcmp=239>. It appears that the case was first brought before the court within two days of the offence.

Can you please confirm that the charge in this case fell under section 127 of the Communications Act 2003? If so, please explain why the Serious Crime Act 2007 was not applied as it had been in other similar cases around the same period of time. Also please give details about how the Full Code Test was applied in this case. I’m particularly interested in the evidential stage. Was the defendant advised by the CPS that he must enter a guilty plea if he did not deny sending the offending communication? As the prosecution was expedited very quickly, I would consider an expedited response to my query to be appropriate; therefore, I ask that you please respond by Friday, the 26th of August. Email responses are preferred. Thank you.
I doubt the CPS will honour my request for an expedited response, but I thought I'd give it a try. If you're wondering why I'm interested in this case, read this article which I also wrote.

Friday, 19 August 2011

Arsehole Justice: Speedy prosecution of Facebook teen means no time ...

"I am so angry about this that I don't even know where to start, so I'll just start. I may need to actually restrain myself. *Deep breaths* A case was brought before the Magistrates Court in Bury St. Edmunds, West Suffolk last week concerning a 17 year old boy who posted an update to Facebook that has been viewed as an invitation to start riots. I knew about this case when I saw itwritten up in the Guardian a few days ago after sentencing. The sentence was a 12 month ban from all social media and some other non-custodial terms. What was not immediately apparent to me when I read that article was that the youth was charged under section 127 of the Communications Act 2003 for sending a menacing message. This is the same charge under which Paul Chambers was convicted and which he is still appealing in what has become known as the Twitter Joke Trial..."

Wednesday, 17 August 2011

New blog - Arsehole Justice

Hi *waves*. I'm pissed off about the rushed hearings and spate of disproportionate sentencing I've seen following the UK riots of last week. This has prompted me to start a new blog which I've titled "Arsehole Justice", where I feel more free to express the scorn and vitriol I'm feeling towards the ludicrous prosecutions and ridiculous judgements that have been passed down. Jurists have been acting out in ways that make some of these defendants seem like model citizens by comparison. It really is chilling. Look at this excerpt from the Guardian:

In sentencing four other convicted Manchester rioters, a crown court judge, Andrew Gilbart QC, made clear why he was disregarding sentencing guidelines when he said "the offences of the night of 9 August … takes them completely outside the usual context of criminality".

"The principal purpose is that the courts should show that outbursts of criminal behaviour like this will be and must be met with sentences longer than they would be if the offences had been committed in isolation," he said. "For those reasons, I consider that the sentencing guidelines for specific offences are of much less weight in the context of the current case, and can properly be departed from."

This is just such a ludicrous thing to say, and any qualified jurist, let alone a Crown Court judge, ought to know better. It makes a mockery of proportionality, which is an absolutely fundamental principle in British justice, indeed in any decent justice system. These knee-jerk responses to some genuinely terrible events are the real tragedy because they undermine the legitimacy of the courts and ignore their actual principal purpose, which first and foremost is to protect the innocent. As I've said over on Arsehole Justice, nothing takes an offence "completely outside the usual context of criminality." Nothing. There are sentencing guidelines that have evolved to meet the challenges of law enforcement and take into account both mitigating and aggravating factors. To dismiss these guidelines is to flush any notion of justice down the toilet. I happen to think that justice and the rule of law are important, and so I will not stand for it. If you feel the same way then perhaps you'd like to become a contributor. Let me know.

Tuesday, 16 August 2011

Arsehole Justice: Judge Elgan Edwards QC dishes out some...

Judge Elgan Edwards QC dishes out some Arsehole Justice in Cheshire

"From the Guardian: http://www.guardian.co.uk/uk/2011/aug/16/facebook-riot-calls-men-jailed

Judge Elgan Edwards QC has dished out some serious Arsehole Justice against the defendants Perry Sutcliffe-Keenan and Jordan Blackshaw in Chester Crown Court. These two men were charged with inciting unrest under sections 44 and 46 of the Serious Crime Act 2007, which carried a maximum sentence of 10 years in prison. Both men received 4 years in prison for creating Facebook pages that appeared to be organizing riots in their local communities, neither of which resulted in any actual disorder and at least one of which was regarded as a joke by its author..."

Wednesday, 20 July 2011

When the government knows better than the copyright owner

This post is an archive. The live version can be found on a new blog called Arsehole Justice (no offence).

It seems the Departments of Justice and Homeland Security under the Obama White House are increasingly viewing themselves as the guardians and protectors of all United States intellectual property. Operation In Our Sites, launched by the Immigration and Customs Enforcement branch of Homeland Security in June 2010 has seen some 90 internet domains seized that were associated with websites believed to be engaged in the illegal distribution of copyrighted materials or sale of counterfeit goods. Earlier this month ICE made the alarming claim that they believe any web domain that sits under the top level domains of .com or .net fall under US jurisdiction because the DNS for those TLDs is routed through Verisign's switches located in Virginia. This was reported in the Guardian newspaper. According to Erik Barnett, the agency's assistant deputy director, this allows the United States to seek extradition of foreign nationals who use .com or .net domains in their law-breaking activities, regardless of the locations of the nationals or the servers and regardless of whether the activities are legal in the local jurisdiction.

This stance became clear as ICE sought from the British government the extradition of a UK national who had created a web site that allowed a user community to post links to video content, some of which had been made available on sites such as Youtube without respecting copyright. In the United Kingdom, Richard O'Dwyer's tvshack.net website (in the aforementioned article) would enjoy the "mere conduit" defence as it was simply a platform that serves a user community who provide the content. It is arguable whether a URL can even be treated as a copyrightable work in any context. A Uniform Resource Locator is nothing more than a signpost to the resource that a web browser is seeking. The content delivered through a URL can change at any time, so it is hard to see how a URL can represent a work any more than a telephone number can represent a person. It seems however that in the United States, this is beyond question.

The very worrying development that I've seen today however, makes this case seem insignificant. Yesterday Aaron Swartz, a fellow at Harvard University's Center for Ethics and an activist for open knowledge, was arrested and charged with offences under the Computer Fraud and Abuse Act. The alleged offences include hacking into JSTOR, a non-profit organization that hosts academic journals, via a computer room at MIT and then downloading millions of research papers onto his laptop computer. JSTOR charges for its content, and research universities typically pay a flat fee for access and then make the digitized journals available for free to faculty, staff and guests for research purposes (as one might reasonably expect). The indictment, which can be read at the bottom of the linked article, charges that Swartz used subterfuge to gain unauthorized access to MIT's computer network and used software tools and trivial measures to automate the downloading of content and to circumvent the weak efforts made by MIT and JSTOR to prevent such mass downloading. Eventually, he was found out and somehow the FBI got involved. It's not clear how the Feds initially were activated, but it is clear that both JSTOR and MIT were eventually satisfied that there was no harm done as Swartz gave assurances that he did not intend to distribute the articles that he downloaded.

One would have thought that the matter might end right there, but one would be wrong. The US Attorney's Office decided to press ahead with a prosecution for felony computer hacking, worth up to 35 years in prison and a $1 million fine. Because the files were accessed from a computer in Massachusetts and the JSTOR servers are located in another state, this rises to federal jurisdiction. Here is what JSTOR have to say on the matter:

We stopped this downloading activity, and the individual responsible, Mr. Swartz, was identified. We secured from Mr. Swartz the content that was taken, and received confirmation that the content was not and would not be used, copied, transferred, or distributed.

The criminal investigation and today’s indictment of Mr. Swartz has been directed by the United States Attorney’s Office. It was the government’s decision whether to prosecute, not JSTOR’s. As noted previously, our interest was in securing the content. Once this was achieved, we had no interest in this becoming an ongoing legal matter.

JSTOR, in other words, are not really bothered about this breach and having engaged in civil discourse with Aaron Swartz were prepared to take him at his word that he had no intention of distributing the materials. Why then is the US Attorney's Office so keen to prosecute Swartz for what amounts to little more than the violation of an online service's terms of use? Since when is it a crime, federal or otherwise, to violate a web site's terms and conditions? I would have thought this was clearly a civil matter. More importantly, why is the federal government enforcing a web site's terms and conditions when the company that owns the website is not asserting them? The files that Aaron Swartz downloaded were ones he was free to download as a guest of MIT. He just wasn't supposed to take so many. He may have gained unauthorised access to the MIT computer network, but that would be between himself and the university with no state lines having been crossed.

I find this approach deeply troubling as the US Attorney's Office is sending a clear message that it has a mandate to pursue a prosecution on copyright grounds even against the wishes of the copyright owner. JSTOR act as an agent for the journals who own the copyright of selected works, and so they have a responsibility to ensure that royalties are collected and properly distributed. If JSTOR are willing to take the risk that Mr Swartz will not redistribute the materials he downloaded, they must believe that the risk is insignificant. There is nothing to suggest that any of the journals that figure into this story have sought a remedy for copyright infringement. What we have here is the federal government taking charge of enforcing copyright even when the copyright owners are not bothered about it. That makes no sense. Surely as a copyright owner who licenses content I can decide on a case by case basis whether or not I want to enforce that license. It is not for the federal government to intervene like some sort of guardian angel. This sets a terrible precedent. Whatever next? Will the federal government decide that all content should be governed by commerce whether we like it or not? Will it be un-American of me to give away for free the content that is of my own creation? Sounds silly. I'm not laughing though.

Tuesday, 24 May 2011

Where should the right to privacy begin and the right to speak freely end?

This post is an archive. The live version can be found on a new blog called Arsehole Justice (no offence).

I'm a strong proponent of freedom of speech. I cannot and have no wish to deny this. The Paul Chambers so-called "Twitter Joke Trial" has shaped my views in this area. I have even at times half seriously referred to myself as a free speech fundamentalist, although in reality I am not. I understand that there are and ought to be limits imposed on what a person can say. These limits depend mainly upon the context of the speech act in question and the rights of other people. I have the right to say something that you find offensive. You do not have the right to be free from offence. You have the right not to be threatened and abused. I do not have the right to direct threatening and abusive language at you. The right to privacy is enshrined in the laws of many countries, including the United States and every member of the European Union. The European Convention on Human Rights, which is implemented in the UK by the Human Rights Act 1998, specifies among other things the rights to free expression and privacy. Naturally these two rights are often in tension. When this happens the judiciary must apply a consistent approach to deciding which of the two should take precedence in any given case. The case of CTB v News Group Newspapers has presented a unique challenge to the judiciary for reasons that I do not wish to explore in great detail; however, I want to talk about this case in particular because I have a view of privacy that seems to differ sharply from the judiciary in this country and in Strasbourg. Quite to my surprise, my view of privacy also seems to differ from some of my friends who otherwise have very similar views to my own where free speech is concerned. Before I go any further, let's look at the text of Article 8 of the ECHR which is implemented in HRA98:

  1. Everyone has the right to respect for his private and family life, his home and his correspondence. 
  2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
There are two separate statements here. At this point I need to make clear that there is no public authority attempting to interfere with the privacy rights of CTB. Instead, we have a newspaper group and a private individual who wish to breach the privacy. Because of this, the second statment has no bearing on the case. The first statement says "Everyone has the right to respect for his private and family life, his home and his correspondence." The facts of this case are very roughly as follows: A woman called Imogen Thomas had an alleged affair with a professional football player who is married with children and who wishes not to be named; Imogen Thomas desires to tell the story of her relationship with the football player identified in the court documents as CTB and News Group Newspapers Ltd. wishes to purchase the story for publication in their newspaper, The Sun; The claimant CTB sought and Justice Sir David Eady granted on the 14th of April 2011 a temporary Anonymised Injunction preventing the disclosure of the claimant's identity. In his judgement, Eady cites evidence before him, tending to suggest blackmail, as one of the major reasons for the granting of the injunction. He is quick to point out that the evidence has not been properly tested and that he cannot come to any final conclusion at that stage. (See para 9). The evidence also appears to suggest that Newsgroup were using Imogen Thomas with her consent to set a trap for the claimant in order to obtain additional materials for their story. Because of this, Eady felt it was reasonable that the claimant be excused from serving the respondent Imogen Thomas in advance of the 14 April hearing (see para 12). What this effectively means is that Imogen Thomas was unaware of the action until she was served with the injunction and was not afforded the opportunity to state a case. She was at that point and is still muzzled from revealing the identity of the sports star with whom she had an affair, to any party other than advisors and close friends and family (I am led to believe), who are then also bound.

Case law and what is referred to as "the new methodology" (para 23) requires first that the court decide whether the subject matter of the threatened publication gives rise to a "reasonable expectation of privacy". In this case Eady feels (and is indeed supported by case law) that there is no doubt on that score, as it is concerned with "conduct of an intimate and sexual nature and, what is more, there has been no suggestion in this case that the relationship, for so long as it lasted, was conducted publicly". Here is where I find myself differing sharply with the judge (and evidently also case law). I do not believe that conduct of a sexual nature is necessarily intimate, nor do I believe that the fact of such a relationship is necessarily entitled to privacy. The salacious details of such a relationship may well be, be not the fact of it. What I see here is that there was a relationship involving two people and one of them wishes to keep it secret while the other wishes to disclose it. I would argue that contrary to intuition, there is a greater expectation of privacy in a relationship that is conducted publicly. That is because in a secret relationship such as this between one married and one unmarried party, the former is at great risk from exposure while the latter is not. It is hard for me to see how such a relationship could foster the necessary levels of trust in order to be regarded as intimate. The view (no matter how sincerely held) on the part of CTB that the fact of his relationship with Imogen Thomas should be accorded protected status should she wish to reveal it does not therefore seem reasonable to me. As such, if it were up to me this application would have fallen at the first hurdle. That she should be even temporarily prevented from disclosing personal details of her own life because of a perceived obligation of confidence that she owes to the claimant strikes me as wrong and also dangerous. It is made worse by the fact that once the information was already leaked to the wider public, the further dissemination of that information was and still is in contempt of court. In my opinion Article 8 should not generally be used to prevent one from revealing information concerning the activities and aspects of one's own life even where it intersects with another. This should be a matter of ethics, not a matter of law. Article 8 should rather be used to prevent and/or remedy unauthorized access to private information about a person, i.e. blatant press intrusion into the private sphere. Examples of this might include a journalist going through someone's rubbish bins, or a newspaper using fraud and deception to obtain information. If the allegations against NGN and Imogen Thomas are true, then this is indeed a very serious breach of privacy and is indeed also attempted blackmail. However, Imogen Thomas was not afforded the opportunity to state a case when the injunction was granted and so the evidence before the judge was one sided. It is therefore in my opinion wrong to gag her. The final paragraph of the judgement is one I find particularly galling:

Moreover, in so far as Ms Thomas wishes to exercise her Article 10 right by selling her life story, she is entitled to do so, but only subject to the qualification that she is not thereby relieved of any obligation of confidence she may owe, or free to intrude upon the privacy rights of others: see e.g. McKennitt v Ash, cited above, ...
The implication is that since CTB does not wish to be named as having had an extra-marital affair with Ms Thomas, she may never publicise this information, regardless that it happens to be true and a part of her own life. I'm sorry, but no. The information was lawfully obtained as the result of shared experiences and she is an autonomous human being. Because of this I also take issue with paragraph 33:

It follows that one can rarely arrive at the answer in any given case merely by reference to generalities. It must all depend upon the particular facts of the case. It follows too that there can be no automatic priority accorded to freedom of speech. The relative importance of the competing values must be weighed by reference to the individual set of circumstances confronting the court. Of course the court will pay particular regard to freedom of expression, but that does not entail giving it automatic priority. All will depend on the value to be attached to the exercise or proposed exercise of that freedom in the particular case. It will rarely be the case that the privacy rights of an individual or of his family will have to yield in priority to another's right to publish what has been described in the House of Lords as "tittle-tattle about the activities of footballers' wives and girlfriends": see e.g. Jameel v Wall Street Journal Europe SPRL [2007] 1 AC 359 at [147]. It has recently been re-emphasised by the Court in Strasbourg that the reporting of "tawdry allegations about an individual's private life" does not attract the robust protection under Article 10 afforded to more serious journalism. In such cases, "freedom of expression requires a more narrow interpretation": Mosley v UK (App. No. 48009/08), 10 May 2011, BAILII: [2011] ECHR 774, at [114].
The problem with this is that the "tittle-tattle about the activities of footballers' wives and girlfriends" and the "tawdry allegations about an individual's private life" should not be regarded solely as the object of journalism. They are first and foremost the reflections of a party to the "tittle-tattle" who ought to be permitted to speak about them. If a newspaper wished to publish some details that no other party wished to have told, then I can follow that reasoning. The paragraph is referring to the newspaper's freedom of speech as pertaining to the publishing of information it has obtained. It is another matter when applied to Ms Thomas' freedom to recount her life. If there was some way to prevent newspapers from publishing the information while still preserving Ms Thomas' right to communicate it freely, then that would be far preferable. The fact that the information is not in the public interest is to my mind immaterial. It should be Imogen Thomas' right to speak freely as an interested party. It seems to me that Eady's interpretation is that Ms Thomas should not even be permitted to publish a personal blog of her account. Had she done so before the injunction was granted, she would have been in breach of CTB's Article 8 protections. I do not agree.

The issue has been raised a number of times surrounding the right to privacy that the family of CTB deserve. The revelation of the affair could have potentially devastating effects on their private family life, including severe marital distress and teasing and bullying of children in the playground. I appreciate this and it is indeed sad that our attitudes to marriage and sex can cause such harm to others. However, I see this as an indirect consequence of the revelation of the affair, which is after all a consensual relationship between two people who knew the risks should the truth come out. As much as we would like to believe that we can always shield our family from the consequences of our actions, this is simply not practical in real life. A husband, wife, father, mother, son or daughter may be convicted of a crime for which they are incarcerated for a length of time. Certainly this will have serious and profound negative implications for private family life. Likewise will a serious illness. However, it is folly to think that we should fail in our duty to carry out justice or communicate unpleasant news because of the harm it may cause to some. For perfectly innocent reasons, parents may get divorced and the children may suffer as a result. Children may be bullied for all sorts of other reasons that are not within our control. It is unpleasant, but as parents we must try to raise our children to deal with the things in life that are not fair. Kids are tough. Adults are too. With proper support they can get through difficult times with surprising resiliency. The results can even be beneficial ultimately. It is in my opinion a serious over-reach of the judicial system to interfere with speech for the purposes of preventing any harm that speech may indirectly cause to someone else owing to social attitudes. So long as parents are fit to raise their children, it is not for a judge to decide what is best for them.

In conclusion, I think these privacy injunctions are handed out too freely. They have also been shown to be farcically ineffective in the age of social media. There may be some use in certain narrow cases, but I don't think this case calls for one. Certainly the idea that an injunction can prevent blackmail seems ludicrous. Blackmail is about coercion in exchange for keeping quiet. Once the "cat is out of the bag", the blackmail game is up. Why not instead build a case for the charge of blackmail? The threat of an attempted blackmail charge with sufficient evidence to back it up ought to accomplish the same goal. Privacy is important to protect pre-emptively though. You cannot put the genie back in the bottle. So what can we do about it? First of all, I think we should review our interpretation of Article 8 which I feel has been too broad. Second, perhaps instead of a gagging order we should allow relief in the form of a court resolution which states that there has been accepted an objection to the publication of information which is deemed to be private and believed to have been obtained without authorisation. The resolution would make clear that publication of the information covered would incur greatly more severe penalties, both civil and criminal, should it be found at a later date to have been obtained unlawfully. This might give tabloid newspapers and "gold diggers" like Imogen Thomas some pause.

Thursday, 5 May 2011

I voted #yes2av

I wanted to inform you that I voted Yes to the Alternative Vote system on the UK election reform referendum today. My reasons are two-fold, which I will explain in detail. First, I want parties to work together in Parliament. Second, I want MPs to have to work harder for their constituents. I have gathered together my thoughts on this rather late, I'm afraid. By the time you read this we will likely have been told the referendum returned a negative result. That's a shame, because I really think it would have changed British politics for the better. If you already understand how AV is meant to work, you can skip the explanation and go on to paragraph 2. AV is not such a complicated animal as some in the NO camp would have you believe, nor is it an inversion of democratic principles. It is really quite simple. In a general election a voter may provide not only his/her first choice but may also list alternate choices in order of preference. A voter may choose anywhere from zero to the maximum number of alternates from the pool of candidates. A candidate standing for a seat in the House of Commons must receive at least 50% of the total votes returned in their constituency in order to claim victory. In the event that there is no majority, the candidate with the least votes is eliminated and all remaining second choice votes are tallied and assigned. This process repeats with third choices, etc until either a candidate has a majority or all votes have been tallied.

This proposed system has been much maligned by the supporters of the current First Past The Post system, who claim among things that it would turn losers into winners. I think that the critics who are honest about it are perhaps failing to think the process through to its logical conclusion, instead thinking in terms of the numbers that are seen under the current system. The current system of FPTP is admittedly simpler. All votes are tallied and the one candidate who receives the most votes is the clear winner. When there are only two viable candidates this is perfectly fine. However, when there are several candidates who are likely to garner significant proportions of the vote, the voter must think carefully about his/her vote. Where there is little prospect that one's preferred candidate will win the election, one is tempted to use one's vote tactically by voting instead for the perceived lesser of two evils. In a so-called safe seat, the candidate representing one party is expected to win the most votes, probably by a significant margin; however, depending on the field this may be well short of an overall majority. What we end up with in a safe seat is a candidate selected based on his/her appeal to the core of the party. When this candidate is inevitably elected, we find that the majority of the constituents who did not choose that candidate feel disenfranchised.

Under AV, we would likely see candidates selected not solely on the basis of their party appeal but also for their broad appeal to the constituency. In other words, the leading party candidate would be chosen with a view to capturing an overall majority or close to it. Moderation is favoured over strong ideology. This is a victory over tribalism and can only be a good thing. Since candidates need to consider how voters from other parties might choose alternates, it is to their advantage to have the broadest appeal. On the other hand, it is to their disadvantage to engage in dirty campaign tactics as voters from other parties would not be impressed by this. This improves the tenor of politics, which again can only be a good thing. When the more moderate candidate is installed in Westminster, we can expect that he or she will be more willing than the ideologue to work with members of other parties in order to draft important legislation, lest he/she risk alienating the cross party constituents that gave favourable alternate votes. This, combined with the fact that there would likely be fewer safe seats and therefore more hung Parliaments, ought to promote cross party cooperation. Again, this can only be a good thing. We should not be afraid of hung Parliaments and coalition governments. The nature of coalitions would change if the aforementioned changes happened. In Germany, where proportional representation is the model, it is simply taken for granted that the government will be a coalition. There is nothing at all wrong with this. It is highly democratic. AV could well move Britain away from petty tribal politics and towards a healthier political ecosystem. When voters feel that their votes are not wasted, that there is a good chance they will get at least some of what they want, hopefully they will then become more engaged. It is an iterative and organic process and it has to start somewhere.

Back again

I'm back on Blogger.com now (with my own custom domain of course). I didn't like Posterous. It was a serious hassle getting my last couple of recent posts over to here. I won't be going through that exercise again soon.

Saturday, 16 April 2011

A drunk's-eye view of the #TwitterJokeTrial gig

UPDATE: This was originally published as part one of a two part series, but I decided that I wanted it all in one piece.


I got very drunk last night. Very, very drunk. It would have been hard for me not to. The atmosphere was not conducive to staying sober. Luckily my wife was there to make sure it didn't get too far out of hand. From today, I am on the proverbial wagon. It's not that I'm ashamed of anything I got up to last night. I'm not. It was a blast and fortunately I have retained the memory of it. The truth is that I had already given up. It was the first drinking I'd done in nearly three weeks. Call it a temporary suspension of the wagon. I won't really get into why I've decided to quit except to say that this is the third time in my life that I've done this. I've gone years without drinking and I've felt that my life generally runs better in that mode. Drinking doesn't really go well with my depression. When I've come off the wagon after these experiences it has always been in a conscious and controlled manner. I'd felt more mature, as though I'd turned a corner and things would be different. Somehow though I always seem to end up back here. Excess. So here we go again.

Anyway, enough about that. That's not really what this piece is about. This is about a very special night and some very special people. The Twitter Joke Trial gig was a comedy event hosted by the very slick Al Murray, a.k.a. the Pub Landlord. Before the gig a bunch of us met up in a pub not far from the venue. Bee got to meet Paul and Sarah for the first time and we also met Martin, Danny, Louise, Helen, Maria, Clive, Emi and many others. I'm sorry I didn't get to meet Gavin. Maybe next time. I got to meet up again with David and Mo and Vanessa, who have become friends. All great tweeps. All lovely people. I drank a lot of beer. Paul's mum and a bunch of her family turned up and it was really delightful to see the support from that quarter. I think they were a bit in awe of what this has turned into. Who could blame them? Stephen FryAl MurrayJack WhitehallGraham LinehanRufus HoundDavid SchneiderRobert PopperStephen GrantGary DelaneySusan CalmanKaty Brand. All these excellent people of comedy came out to do this benefit gig in support of the cause that Paul Chambers has become identified with. And they all felt honoured to be a part of it. It couldn't have happened to a nicer guy really. I suppose that's the point. If Paul were a jerk this would still be important, but it wouldn't be quite so apt. The willingness (perhaps eagerness) of the police, the Crown and the courts to make criminals out of decent people in order to show that the criminal justice system is vigilant on our behalves is frightening. We are letting them know that this is not acceptable - that they have overreached the set of responsibilities that our consent endows upon them. The ordinary person test that judge Jacqueline Davies concocted in her ridiculous judgement to deny appeal cannot possibly stand up in court now. Not after all this welcome attention. As we head into a possible summertime High Court appeal, let's hope it's third time lucky.

I digress. Back to the gig and the people. That's what this is really about. Bee and I were pleased to discover another friend, Ashley, sitting in the row behind us. We also met Audrey and Liam. There were many highlights to the show. My personal favourite was a bit where Rufus Hound played an audio clip of an argument he'd had on Radio 5 Live with Edwina Currie. It's a must listen. Stephen Fry made headlines by declaring that he'd be prepared to go to prison in order to ensure that the verdict is not allowed to stand in law. Robert Popper showed some of his zany call in pranks that are the hallmark of his comedy. Emi (@krunchie_frog) got called up on stage with David Schneider, who was on great form. Gary Delaney dazzled with his superb puns. Paul's solicitor David Allen Green made a terrific speech after the interval in which he expressed how the decisions in this case have made him feel as an officer of the court. I'm not so coy as to fail to mention that I was pleased for the name check he gave me on account of my campaigning work. He didn't have to do that. It was nice of him. Well, we are mates after all. Because of this. All because some guy got annoyed in January 2010 and blew off a little steam. All because we are apparently not allowed to make jokes about terrorism in public.

I remember the second time I met David. It was at the second meeting I attended of Westminster Skeptics in the Pub, which he convenes. It just happened to be the evening of the day when Paul lost his case in the magistrates court. We both wore the same wounded, incredulous expression. It was something nearing shell shock. He shook my hand and said "this was a terrible, terrible decision today." So strongly did he feel about that decision that he took the step of organizing Paul's appeal, which he undertook pro-bono. Nearly a year on, I find myself sitting in the audience of a comedy concert in which the fabulous Graham Linehan shows off some of his favourite corners of the web. Funny stuff, whether or not that was the creators' intentions. Two video clips in particular are worth a mention. UGLY FURNITURE and the Super Broker Shuffle. I briefly met Graham at the after show party and had a nice chat with his wife Helen. Of all the performers at this gig, Graham is the one whom I most wanted to meet. He has been a very active and eager supporter of Paul since quite early on.

The rest of the night is a blur. Bee and I stayed at the party until quarter to 2. I consumed a lot of alchohol. I got very silly. There was a lot of karaoke singing and I did a bit of what some have described as interpretive dance to some of the other performances. It was that kind of night, folks. David Allen Green and former Liberal Democrat MP Dr Evan Harris sang a duet together while Al Murray looked on in quiet amusement. I can't remember what they did. If anyone has a video of this, please come forward ;-). Alex and I did a duet with Under Pressure. We flipped a coin to decide who got to be Bowie. I won the coin toss but chose Freddie if you can believe it. I didn't realize it at the time, but Alex is Emi's other half and he was splendidly picked on by Al Murray at the beginning of the gig. It was around this time that I met Mike and Chris in person. Mike is often very jokey on Twitter, but he was very serious as we spoke about the absurdities of the Twitter Joke Trial. As we were getting ready to go, I spotted James and Liz who do The POD Delusion podcast. Check out the Twitter Joke Trial special edition, where they were backstage interviewing Paul, Stephen Fry, Graham Linehan and a few of the other performers. They had to miss out on the gig itself, but I rather think it was probably worth it, don't you? I'm in danger of going on and on, so I think I'll wrap it up here. In summary, I'm a drunk. I had a great time. It was an amazing night and it is a great and important movement of which I am proud to be a part. I look forward with some measure of apprehension but a larger portion of hope to the next leg of the appeal, which will probably happen in the late summer or early autumn. I will be there. I moved a pre-booked holiday to be at the gig. I'm not going to miss the trial. If you're anywhere near London, then I hope you'll join me. Whatever the outcome, it will be historic. And you might get to meet some of the special people I've mentioned. The many ordinary people who like myself do not fit the profile described by Judge Davies. People who when the chips are down are prepared to stand up and shout "I am Spartacus!" Ordinary people can make a difference if enough of them get together. Just occasionally, ordinary can become extraordinary. I am Spartacus!

Monday, 11 April 2011

Why is free speech so difficult for some people to comprehend?

This post is an archive. The live version can be found on a new blog called Arsehole Justice (no offence).

I haven't been very good about writing in my blog recently. The urge comes and goes. There's something I wanted to write about last week, but I waited too long and lost the desire. Something I've just seen has brought it back though. What I'd intended to write about this time last week was the attitudes of a couple of US Senators towards free speech. The Senators are Majority Leader Harry Reid (D-Nevada) and Lindsey Graham (R-South Carolina) and the context is the recent burning of a copy of the Quran by Florida pastor Terry Jones (the same one who threatened to burn copies of the Quran last year). The two Senators are upset and rightly so by the rioting in Mazar-I-Sharif, Afghanistan that killed eight United Nations workers. But somehow they overlook the fact that these killings were done by people who share a warped sense of justice, regardless of how or even whether they might have been incited to violence.

On Sunday the 3rd of April, Senator Reid had this to say to Bob Schieffer on CBS's Face the Nation explaining that some members of Congress were considering some kind of action in response to the Quran burning, a political expression protected by the First Amendment: "Ten to 20 people have been killed," adding "We'll take a look at this of course...as to whether we need hearings or not, I don't know." On the same program, Senator Graham said the following (which would be laughably ridiculous if he weren't a law maker):

"I wish we could find a way to hold people accountable. Free speech is a great idea, but we're in a war. During World War II, we had limits on what you could say if it would inspire the enemy. So, burning a Koran is a terrible thing but it doesn't justify killing someone. Burning a Bible would be a terrible thing but it doesn't justify murder. Having said that, anytime we can push back here in America against actions like this that put our troops at risk we should do it, and I look forward to working with Senators Kerry, and Reid, and others to condemn this, condemn violence all over the world based on the name of religion. But General Petreaus understand better than anybody else in America what happens when something like this is done in our country and he was right to condemn it and I think Congress would be right to reinforce what General Petreasus said."

So much to pick apart here. Free speech is not just a great idea. It is the cornerstone of a healthy democracy. It must be protected at all costs, barring certain well established exceptions where actual harm is directly caused. Graham is right that Koran burning is a terrible thing (to some) and that it doesn't justify killing someone. Why not leave it there? That says it all. Pastor Jones is in no way responsible for the killings of innocent people in Afghanistan. You might as well claim that the Martin Scorcese film Taxi Driver is responsible for the attempted assassination of President Ronald Reagan or the rock group AC/DC is responsible for the work of serial killer Richard Ramirez, who claimed to have been influenced by their track Night Prowler. Some have tried to make the latter claim, but thankfully these people have always been a sliver of a minority. It is worrying though that this attitude is becoming acceptable and even mainstream, particularly where terrorism is concerned. The people responsible for the killings are the rioters and the mullahs who spurred them on.

Terrorism is nothing new, although it has taken on elevated political significance since the al-Qaeda attacks on the World Trade Center and the Pentagon in September 2001. The history of terrorism is thought to go back to the beginning of the first century AD, when a Jewish extremist group called the Sicarii Zealots attacked collaborators with Rome. Why should such an ancient form of violence suddenly threaten our core freedoms? Freedom of speech is a great idea especially because we are at war. It is a war that the West will probably always be waging. Although he refers to World War II, Graham is most likely thinking of World War I when President Woodrow Wilson passed the Espionage Act 1917 and the Sedition Act 1918. The second of these two laws was a horrible overreach that forbade the use of "disloyal, profane, scurrilous, or abusive language" about the United States government, its flag, or its armed forces or that caused others to view the American government or its institutions with contempt. It was thankfully repealed two years later. This goes to show just how fragile freedom of speech can be, particularly in times of war. The Espionage Act is still in force today and Congress are attempting to use it to prosecute Julian Assange of Wikileaks.

Does the action of one crackpot in Florida put our troops at risk? No. That would be attaching too much importance to Pastor Terry Jones. Let's not inflate his ego or next thing he'll be setting mosques alight. What might put our troops at risk is United States foreign policy. I believe General Petraeus would agree. As Jim Treacher of The Daily Caller says in the headline of his article from the 4th of April, "The President of the United States bombs a Muslim country, and some nobody in Florida burns a Koran. Guess which one's to blame for rioting in Afghanistan?" Yes, the rioters were incited to violence. However the blame for this lies squarely on the shoulders of a few angry mullahs, not some idiot halfway round the globe who burned a book.

What got me thinking about this again was something my friend Padraig Reidy of Index on Censorhip wrote about the Independent columnist Yasmin Alibhai-Brown and her "interesting" take on freedom of speech as she outlined it in her column today. Some may remember Alibhai-Brown for her involvement in a case that briefly paralleled the Twitter Joke Trial, when she initially sought the prosecution of conservative councillor Gareth Compton over a provocative comment he made about her on Twitter. Free speech seems to be a difficult concept for some people to grasp. Our prejudices sometimes get in the way. This is precisely why it must be protected.

Thursday, 31 March 2011

Blog is moving to posterous. URL will remain the same

If you are one of the dozen or so people who subscribe to my blog through Blogger.com, you may want to know that I have decided to move to posterous.com. The URL will stay the same but you would need to subscribe again. Thanks.

Saturday, 12 March 2011

If you think the Japanese earthquake and tsunami are "payback for Pearl Harbor" then you're an ignorant cretin.

A US naval base was bombed by Japanese planes in 1941, and thank Christ that happened otherwise the US would not have entered WWII and the whole thing would probably have ended differently. Four years later in order to bring the war to a speedy end, Harry S Truman ordered the dropping of atomic bombs on Hiroshima and Nagasaki. This resulted in a loss of life of around a quarter million. It was justified at the time (and still by many) as probably saving millions of lives in the long run. Japan were not keen to surrender. Between 1942 and 1946, the US government interned around 110,000 people of Japanese extraction, 62% of whom were American citizens. So I think it's safe to say that the earthquake of 11 March 2011 is not payback for Pearl Harbor.

Click to see a rogues gallery of ignorant Americentric cretins.

Friday, 4 March 2011

Is America Losing its Sense of Liberty?

This post is an archive. The live version can be found on a new blog called Arsehole Justice (no offence).

This week I made a contribution to the podcast at The POD delusion. It was meant to go up last week, so some of the references are not quite timely. Following is the script I was speaking from. The text is slightly different, as the audio version was edited for length.
America. Land of the Free. Home of the Brave. Country of my birth. The United States of America was founded at the end of the 18th century by visionaries who sought to create “a more perfect union” and “secure the Blessings of Liberty” among other lofty goals. A government of the people, by the people, for the people. And underpinning all of this was the grand idea of Liberty. “Give me liberty, or give me death” proclaimed Patrick Henry to the Virginia Convention in 1775. Give me Liberty or give me death. This is a demand for freedom for tyranny - one that can scarcely be ignored. Agreement among the delegates to the Philadelphia Convention of 1787 to enact a Bill of Rights helped to ensure the ratification of the Constitution itself, addressing the concerns of some of the Founding Fathers that the Constitution did not protect the fundamental principles of human liberty. The Bill itself borrowed heavily from the English Magna Carta and consisted of the first ten amendments to the US Constitution. 
All this talk of liberty, but what is it? At its most basic, liberty refers to the natural condition whereby a human being is free from outside compulsion or coercion. Freedom is therefore limited by the extent to which one’s actions infringe upon the freedoms of another. This is certainly the meaning of liberty that is ascribed to the Constitution. Surely with its rich history of rugged individualism and its stalwart bootstrap culture, America the free would always jealously guard basic liberty, no? I’d always thought so. But I’m worried now. I worry that Americans are losing the sense of liberty and what it means to be truly free. Americans seem ever more willing to tolerate the intrusion of government into their private lives for the sake of some false sense of security. It may not be too late, but when I think of all that has been lost in the last decade I don’t know quite how to go about getting it back. 
Last year an American man from Seattle, Washington called Phil Mocek was arrested at the airport in Albuquerque, New Mexico after he refused to stop filming his security screening by the Transportation Security Administration (TSA), a division of the Department of Homeland Security responsible for travel security. He also failed to provide identification on request. Last month after a two day trial, Mr Mocek was found by a jury to be Not Guilty of all charges brought against him without even presenting a defence. The video taken by Mr Mocek that the police used as evidence showed that he had politely and calmly asserted his rights at all times. TSA agents and police who testified were forced to admit in cross-examination that there were no laws prohibiting the use of photographic or audiovisual recording equipment in the public areas of an airport, nor is a ticketed passenger required to show ID for a domestic flight, nor can the TSA or police legally interfere with his ability to travel by air unless the police have a reasonable basis for believing that a crime has been or is being committed. The Not Guilty verdict was a major victory for liberty and common sense, yet it’s difficult to see how anything will change as a result of it. The TSA do not publish their standard operating procedures, which would inform members of the public of what powers TSA agents have and what travellers must submit to. The Department of Homeland Security refused to furnish the TSA’s procedures when requested under the Freedom of Information Act, instead merely furnishing the titles of these procedures. Even these had never previously been published. How can a traveller assert his or her rights in the face of such arbitrary authority without a published code to refer to? How can the legislature, the judiciary and “We The People” decide whether these procedures are necessary and in the public interest unless they are published? I’m genuinely at a loss. I’ve written to my Congressman, both state Senators, Secretary Janet Napolitano and President Obama. I’m not expecting much of a response. Phil Mocek has incurred thousands of dollars in legal costs for which he has not been compensated, nor have there been any disciplinary proceedings against any of the agents or officers who abused their powers, nor has there been any corrective action taken by the agencies involved. How did we get here? How could America allow the creation of a security apparatus that is unaccountable? Is this what it takes to feel safe at home? I don’t feel safe. Land of the Free. Home of the Brave. 
Yesterday I learned that the Department of Correction (DOC) of the state of Maryland has a blanket policy whereby any new hires or recertifications are required to submit to a background check and to provide the government with their social media account usernames and personal passwords. 
Yes. That’s right. Let that sink in a minute... and let’s continue. Raise your hand if you can think of anything that is wrong with this. Raise both hands if you’ve managed to work out that there are many aspects of this policy that are deeply disturbing and in fact outrageous. In a letter to the DOC by the American Civil Liberties Union acting on behalf of an employee undergoing recertification, the ACLU describes this policy as “a frightening and illegal invasion of privacy for DOC applicants and employees -- as well those who communicate with them electronically via social media”. The rationale, according to one investigator, is “to enable the government to review wall postings, email communications, photographs, and friend lists, in order to ensure that those employed as corrections officers are not engaged in illegal activity or affiliated with any gangs”. This is equivalent to a demand to read an applicant’s private diary and rummage through the photo albums on his shelf – in his home. Oh, and also to read letters that his friends have sent to him and to rummage through their personal effects as well. This makes me livid. What gives a government department (or any employer for that matter) the right to do this? Nothing. It violates at least two of the first ten amendments. Some bureaucrat thought this sounded like a good idea and nobody thought to challenge it. Led to believe he had no choice but to comply, officer Robert Collins surrendered his Facebook login details to his employer. Ask yourself what you would have done in his place. Land of the Free. 
In July 2010, hacker extraordinaire Jacob Applebaum, creator of the Tor privacy and security project and Wikileaks volunteer, was detained at Newark’s Liberty Airport in New Jersey after a return flight from Holland. Applebaum was pulled aside by Customs and Border Patrol agents who informed him that he was selected for a random search. According to sources, Appelbaum, a U.S. citizen, was then taken into a room and frisked, and his bag was searched. Receipts from his bag were photocopied, and his laptop was inspected. He was then questioned by officials from Immigration and Customs Enforcement and from the US Army. When he asked to speak to a lawyer, he was told that he was not under arrest and therefore did not have the right to legal counsel. His laptop was returned to him after three hours, but his three mobile phones were seized. During this time the officials asked him about his Wikileaks activities and his opinions about the wars in Iraq and Afghanistan and God knows what else. Applebaum declined to answer without a lawyer present. He was not allowed a phone call. 
I would be grateful if someone could please explain to me how a person can be detained against his will and questioned by government officials with the possibility of self-incrimination without in fact being under arrest. As far as I know, this is what it means to be under arrest. This is the very definition of under arrest. A law enforcement official cannot simply say “you are not under arrest” in order to get around the pesky problem of constitutional rights. That’s a bit like pouring a bucket of water over someone’s head and then saying “you are not wet”. Yet they will do this because they have the power to. They ought not to have this power, but they do because we allowed it by default. Home of the Brave, my arse. 
Governments always want more power over their governed. The national security gambit is the most sure fire way of grabbing more. Our security services manage to convince us that we need to give them more power so that they can more effectively keep us safe from harm. They feed on our fears and remind us that we expect them to do everything in their power to keep us safe. We believe them and hold them to account when they fail, as they inevitably will, to keep us completely and absolutely safe. They convince us yet again that they need more power, and the hysterical feedback loop begins its next cycle. It must stop. America, please wake up and take back what is yours before it is too late. When government grants itself new powers it is very reluctant to give them back. Emergency powers, which were only ever meant to be temporary, somehow manage to remain in effect for years, even decades. The threats don’t retreat; they remain. Total security in a democratic society is a pipe dream. But we must take a risk based approach to managing threats, otherwise the biggest threat to peace and prosperity, the biggest threat to life, liberty and the pursuit of happiness is the government monster that is incapable of protecting its citizens from itself.

Thursday, 3 March 2011

My Reply to Scott Brown Re TSA

Here's the letter I sent to US Senator Scott Brown today following up on his reply of earlier in the week. I have no doubt he will treat it with the seriousness it deserves. Will update whenever I hear anything. To his credit, I note that Senator Brown is the only official to respond to me so far out of the five I sent letters to.
Dear Senator Brown:
Thank you for your response by email which I received on the 28th of February to a website correspondence I gave to you on the 18th of February. I appreciate that you are a very busy man with many correspondences to answer. My original letter and your response are attached to this letter. By way of reintroduction, I am an American citizen living abroad in the United Kingdom and my voter registration is with the town of Framingham, MA. This letter finds you by post and by fax.

I have found your response to be unsatisfactory as it seemed to miss the point of my query. The response offers assurances about the safety and necessity of several security procedures employed by the TSA, the merits of which I have not disputed. I brought to your attention a case whereby TSA agents, supported by local police, invoked arbitrary and assumed powers to interfere with the legal activities of an air traveller who insisted upon asserting his rights. There is evidence suggesting that this exercise of arbitrary powers by agents of the Department of Homeland Security in general and the TSA in particular is commonplace. Phil Mocek of Seattle, Washington was arrested at an airport in Albuquerque, New Mexico and charged with four separate offences for using a video recording device during a TSA screening and for failing to desist and provide identification when ordered to. The case went to court. The jury found him Not Guilty on all charges solely on the weakness of the prosecution's case. Despite this, there is little reason to believe that the TSA will correct this type of behaviour. There has been no disciplinary action against any of the officials involved, nor has there been any indication of corrective action on the part of the TSA.

To make matters worse, the TSA do not publish their standard operating procedures and have refused a Freedom of Information Act request by a group called the Identity Project for the disclosure of these, creating an impossible situation for an air traveller wishing to assert his or her rights. Here is more information on the Identity Project in relation to this case: http://www.papersplease.org/wp/mocek/ . Here is the (very late) response they received after a Freedom of Information Request. This has been appealed: http://papersplease.org/wp/wp-content/uploads/2011/01/tsa10-0179-appeal-attach-5jan2011.pdf.

I hope you will agree with me that any law enforcement or security agency must publish its regulations and codes of conduct and practice in relation to the manner in which it interfaces with the public that it serves. Accountability demands this. TSA agents are human beings with varying levels of training, of varying qualities of judgement and with imperfect understanding of the law and their roles. As such, they cannot be relied upon at all times to carry out their duties in accordance with applicable laws. When a TSA agent (or any security or law enforcement official) abuses the power he is given or misapplies it, there should at the very least be retraining specified. There is a strong public interest in the publication of these crucial procedures; indeed the public has a right to scrutinize them. How else can members of the public understand how they are required to comply? This refusal is utterly unacceptable especially in light of the fact that private security firms may obtain access to these procedures in order to become TSA compliant. In the event that you have not fully familiarized yourself with the case I have outlined and the concerns I have voiced, please do so now by rereading my initial letter and following any of the supporting web links you might find useful for clarification. Thank you for your continued attention to this matter.

Matthew Flaherty

Monday, 28 February 2011

TSA Complaint - A Response from Senator Scott Brown

A couple weeks ago I wrote a letter to several US government officials complaining about the behaviour of the Transportation Security Administration in the wake of the conclusion to the criminal case against Phil Mocek, who was found Not Guilty without presenting a case. Here is that letter. Today I've had a response from my Senator, Scott Brown (R) MA. It is an entirely unsatisfactory response, having completely missed the point of my letter. It is obviously a cut-and-paste answer to any query concerning the TSA, most of which are apparently related to their controversial security procedures. Most likely the Senator never even saw my letter. Here is the response from Senator Brown, or one of his aides.

Dear Matthew,
Thank you for contacting me regarding the recent changes in Transportation Safety Authority (TSA) security procedures. I always value your input on all issues and appreciate hearing from you.
As you may know, on June 24, 2010, Senator Bob Bennett (R-UT) introduced the SAFER AIR Act, which would implement new forms of airport screening technology. S. 3536 would authorize the use of full-body scan machinery to search for weapons, explosives, or other hazardous materials that are otherwise undetectable. While this bill was referred to the Senate Committee on Commerce, Science, and Transportation for consideration during the 111th Congress, the Administration began testing this type of program and has implemented it in select airports nationwide. Many of the concerns voiced about these procedures have surrounded the health implications of millimeter wave technology utilized by these full-body scan machines. The TSA has assured travelers that the non-ionizing radio frequency energy emitted by the machines is safe, and gives off about 100,000 times less energy than that of talking on a cell phone. 
For those concerned about their privacy as a result of images taken by the full-body scanning machines, please know the TSA worked closely with the manufacturers of these machines to make sure that the capabilities to store and send the images were removed prior to installation. Additionally, there are specific prohibitions on the Department of Homeland Security from retaining images used in airport scanning and require that faces of individuals be blurred. You may be interested to know the imaging technology is of lesser quality than that of basic photography and does not present sufficient detail to be used for personal identification. 
In addition to the full-body imaging machines, the TSA has also implemented new pat-down procedures for those air travelers who opt out of using the full-body imaging machines. According to the TSA, these new pat-down procedures are designed to prevent another "Christmas Day" style attack, where Umar Farouk Abdulmutallab attempted to detonate a bomb concealed in his underwear.
The TSA has stated that these new pat-down procedures are part of a multi-layered security protocol that, along with explosive trace detection, the full-body imaging technology, and canine teams, has been implemented to ensure the safety of the traveling public. Most recently, on November 19, 2010, the TSA agreed to let airline pilots skip the security scanning and pat-downs in response to pilot groups voicing concern about the bolstered security. As the TSA continues to receive feedback from the public, other revisions could be made to parts of the new security procedures. 
Our nation's number one goal when it comes to airport security must be the deterrence of terrorist attacks. I certainly understand the concerns of some regarding the new screening procedures, and I agree that these procedures must be as non-intrusive as possible and respectful of Americans’ privacy concerns. But when it comes to our families’ safety, I come down on the side of caution. Protecting American lives is the most important thing to me during these times of potential terrorist threats. As a member of the Senate Committee on Homeland Security and Governmental Affairs, I will continue to be actively engaged in these issues and related policies. As the legislative process moves forward in the 112th Congress, I will be closely monitoring the implementation of these security procedures. 
Again, thank you for sharing your thoughts with me. If you have any additional questions or comments, please feel free to contact me or visit my website at www.scottbrown.senate.gov
Scott P. Brown
United States Senator

My letter did not discuss the security procedures in use by the TSA. It sought to highlight an apparently arbitrary use of power by TSA agents with the support of police to interfere with lawful activities of travellers. Mr Mocek was arrested and charged with four separate offences for using a video recorder during a TSA screening in a public area of an airport and for failing to provide identification when ordered to. The jury found him Not Guilty on all charges solely on the weakness of the prosecution's case. Despite this, there is little reason to believe that the TSA will correct this type of behaviour, which I'm led to believe is commonplace. The TSA do not publish their standard operating procedures and have refused a Freedom of Information Act request for the disclosure of these, creating an impossible situation for an air traveller wishing to assert his or her rights. Senator Brown, you've not heard the last of me.

Friday, 18 February 2011

Letter: Request for urgent oversight of US Transportation Security Administration

Following is a letter I sent today to several US government officials expressing concern over recent reports of abuses of power by the Transportation Security Administration.

Dear Sirs/Madam,
This letter goes out to my Congressional representative Edward Markey, my state Senators John Kerry and Scott Brown, Secretary of Homeland Security Janet Napolitano, and United States President Barack Obama. I write to you as an expatriated United States citizen who has cause to occasionally travel to the United States through its border controls. I am increasingly concerned about reports of abuses of power by representatives of the Department of Homeland Security (DHS), particularly agents of the Transportation Security Administration (TSA), facing air travelers. The case of Seattle resident Phil Mocek, who faced criminal charges brought by the police department of Albuquerque New Mexico, brings the problem into stark relief. The charges were criminal trespass; resisting, obstructing or refusing to obey a lawful order of an officer; concealing his identity with intent to obstruct, intimidate, hinder or interrupt; and disorderly conduct. The circumstances were such that Mr Mocek was asked by a TSA agent at Albuquerque International Sunport to stop filming during his security screening and refused. Mr Mocek was acquitted by a jury without presenting any evidence as the jury felt there was no case to answer. More information can be found here: http://www.papersplease.org/wp/mocek/. Despite the court victory, I understand that Mr Mocek has not been compensated for his legal costs and that there has been no disciplinary action against any of the agents or officers involved, nor any corrective action on the part of the agencies involved. This is deeply troubling.

I understand as well, and please correct me, that the DHS have refused to furnish the text of standard operating procedures of TSA agents requested under the Freedom of Information Act (FOIA), instead only furnishing a list of SOPs some time after the deadline for disclosure under the FOIA had already lapsed. It would appear, rather alarmingly, that there are no laws or published regulations defining what the TSA is permitted to do, and what travelers are required to submit to, in the name of TSA "screening". This is scandalous. How is it possible for a traveler to assert his rights in the face of such arbitrary authority? I would like to draw your attention to Title 49, subtitle VII, Part A, subpart I, chapter 401 of the United States Code which states:

(c) General Safety Considerations.
In carrying out subpart III of this part and those provisions of subpart IV applicable in carrying out subpart III, the Administrator of the Federal Aviation Administration shall consider the following matters:
(1) the requirements of national defense and commercial and general aviation.
(2) the public right of freedom of transit through the navigable airspace.

The "public right of freedom of transit through the navigable airspace" is guaranteed by the Airline Deregulation Act of 1978, and the TSA is required by federal law to consider this right when it issues regulations. Freedom of movement is required in order for citizens to exercise their First Amendment right to assemble, and is also guaranteed by Article 12 of the International Covenant on Civil and Political Rights of which the United States is a signatory. It is extremely important that the procedures of TSA officials are known to members of the public so that their limitations are understood and that they can be scrutinized by law makers and the judiciary. I quote the following excerpt from a Wikipedia article about the TSA:

"Private screening did not disappear under the TSA, which allows airports to opt out of federal screening and hire firms to do the job instead. Such firms must still get TSA approval under its Screening Partnership Program (SPP) and follow TSA procedures.[7] Among the U.S. airports with privately operated checkpoints are San Francisco International Airport; Kansas City International Airport; Greater Rochester International Airport; Tupelo Regional Airport; Key West International Airport; and Jackson Hole Airport.[8][9]"

Evidently private companies can apply for TSA approval and be bound the TSA procedures. If private companies have access to these procedures then there can be no defensible refusal by the United States government to disclose these procedures to the public. I am quite frankly shocked and dismayed by this state of affairs. I demand that there be Congressional oversight of this government agency so that the balance of power may be restored. I offer you this outside perspective for your consideration: http://www.reddit.com/r/reddit.com/comments/fngfo/why_i_stopped_travelling_to_the_us_and_i_largely/. Your reply is urgently sought. Thank you and kind regards.

Yours sincerely,
Matthew Flaherty

Some further reading: http://www.papersplease.org/wp/2010/12/07/tsa-releases-list-of-sops-but-says-theyre-all-secret/

Flayman on LiveJournal (old)