Is Electronic Snooping OK If You Have Good Intentions?

the conversationShould journalists or security researchers be able to access your home network and change settings without your permission, or snoop on your email and web browsing traffic, in order to further their research? I would think the answer is obviously no, even if the research is legitimate. But two stories that ran last week seem to be expressing dismay at restrictions placed on journalists or security researchers by the Computer Fraud and Abuse Act that allegedly prohibit them from doing exactly that. The issue is significant because, in the wake of several controversial prosecutions (Lori Drew, Aaron Swartz, Andrew Auernheimer (a/k/a “weev”)), there is considerable pressure building to amend the CFAA. I think it would be a serious mistake to amend the CFAA, or any other electronic intrusion statute, to permit journalists or security researchers — or possibly anyone describing themselves as such, such as bloggers or hobbyists — from accessing poorly secured home networks or private communications just out of curiosity.

Here’s Forbes privacy blogger Kashmir Hill on a security flaw in a home automation system:

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Same-Sex Marriage as Divorce

supreme courtBack in 2010, I wrote an article (published in January 2011) asking the question of, essentially, what if the states became stuck on the question of whether same-sex couples could get married? What if they divided, half of them banning same-sex marriages as an affront to the dignity of marriage, and half of them insisting upon the right of their citizens to marry someone of the same sex? Would the states be locked into a patchwork quilt of marriage and non-marriage, with married couple’s rights fading in and out of existence as they crossed the country, or was there some way out of the dilemma?

Our system was born federalist in 1789 but has been getting progressively more nationalist ever since. Most issues that divide the country can be resolved in some way at the national level, either by Congress passing a law under its increasingly expansive Commerce or Spending Clause powers, or by the Supreme Court wielding the Bill of Rights and the Due Process or Equal Protection clauses of the Fourteenth Amendment. But that does not cover the universe of potentially divisive issues. Particularly destabilizing are social statuses designated by state law but not one of the “suspect classifications” of the Equal Protection Clause. For example, same-sex marriage.

In my article, I considered a way to resolve the inevitable disputes that would arise if the system became stuck: half the states recognizing same-sex marriage, half not, and the Supreme Court unwilling to extend Equal Protection doctrine to cover sexual orientation. But towards the end, I noted another possible outcome: the dispute over same-sex marriage could follow the path divorce did in the early twentieth century.

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Dreyfus Secret File Released

Alfred-DreyfusSome number of years ago I wrote a lengthy blog post on France’s Dreyfus Affair — a post I was proud of at the time, but seems to have fallen like a tree in a depopulated forest — arguing that the Dreyfus Affair could stand to get more mileage as a metaphor for a judicial system run amok. As I explained in the post, “[t]he Dreyfus Affair is a story about an egregious abuse of the legal system, driven primarily by a powerful current of French antisemitism and by a desire to shield the French military from its own mistakes. It involves procedurally flawed court-martials, secret evidence, conspiracies, theft of government secrets, deportation to a brutal island prison, leaks to the press, leak prosecutions, riots by antisemitic mobs, and a cover-up and whitewash perpetrated at the highest levels of the French military.”

Without recapping the entire story — you can read my post for a synopsis — briefly what happened is that the French military, on discovering evidence of a spy in its midst passing information to the Germans, railroaded a Jewish artillery captain, Alfred Dreyfus, into a conviction, using secret evidence the existence of which was not revealed to Dreyfus or his counsel. The military then steadfastly refused to overturn the conviction even as it became increasingly clear that someone else was the spy, going so far as to warn the spy to be more careful in the future! It’s hard to make stuff like that up, which is why I think the Dreyfus story makes for a useful allegory.

In any event, there is a new development. The historical department of the French Ministry of Defense has placed the secret file used to convict Dreyfus on the web, on a site located at, interestingly enough, www.affairedreyfus.com. (See NY Times story.) If you read French, you can now see for yourself the sketchy evidence used to convict Dreyfus, and the forgeries used later to maintain that conviction. What’s on the affairedreyfus.com site is transcriptions of the original files, which is good, because the originals (available at the links on the bottom of this page) are difficult to read.

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