A reaction to: “Attorney General: Aaron Swartz Case Was a ‘Good Use of Prosecutorial Discretion’” at Wired.com.

As you see by the date of the article about the Aaron Swartz case I’ve linked to, I’ve been mulling this blog post over for a while.

I’ve known a fair number of software engineers/developers (including myself) and also a fair number of lawyers (including immediate family).

It’s tempting to think we all view the world in a similar way: we work in systems governed by complex sets of rules and try to understand how those rules can be applied. But this masks an important difference.

Software systems, however complex they get, are fundamentally deterministic. Computers don’t make judgement calls, and they don’t make mistakes. If you get the wrong result, it’s a bug to be crushed. (Something that distinguishes professional developers from others is that for us, letting an issue go as an insignificant outlier is often more difficult than digging until you find a solution.)

For lawyers, laws aren’t processed by silicon CPU’s, they’re processed by human judges, juries, and prosecutors. For them, individual discretion is not a bug, it’s a feature. Furthermore, there’s a difference between litigators and corporate lawyers. Much as things like EULA’s are the bane of everyone’s existence, we can find common ground with the corporate lawyers who write them, because we get the idea that inputting a certain formula into “the system”–like a magical incantion–should lead us to desired results. Whereas litigators and prosecutors (and sometimes politicians) are much more comfortable in that risky space where one’s fortune can be changed, not simply by whether you followed the letter of the law, but by human judgement in applying it.

The point of the blog post isn’t to say that one worldview is right and the other is wrong, but that it might help everyone to understand that they are different, and that either way of thinking can be used for good or evil. Both sticking to the rules and never making an exception, and fighting to win by bending the rules, can lead to inhumane results. We need to strike a balance.

Learn more from EFF about the CFAA, the law used to prosecute Aaron Swartz, which gives prosecutors the discretion to pursue almost any modern computer usage as “hacking.”

When I was in fifth grade, one of my teachers went to visit Russia. I remember her telling us how there were fairly obvious wires going from their hotels rooms to the end of hall where government monitors could spy on guests.

Around the same time, I heard a Soviet joke: An American says, “American is a great country, I can say I hate President Reagan out loud on the street and I won’t get in trouble.” The Russian replies, “So? I can say that I hate that American President Reagan, too.”

The Cold War was in full effect, and spying on citizens, or controlling the press, was supposed to be something they did, our Soviet nemesis that Reagan called an “evil empire,” and what separated us from them, was that we were free, our rights protected.

Perhaps I was naive, but as a child of the ’80′s, this is what I learned as right and wrong. These days, when I hear about something that sounds like the government abusing civil liberties, I’m concerned, but I like to at least consider that maybe there’s another side of the story. Perhaps there was a misunderstanding. Perhaps, from the government’s perspective, they were doing the right thing.

But it’s hard to see how spying on the AP could be seen as doing the right thing. It’s not just a violation of someone’s privacy, it’s a violation of freedom of the press stated in the Constituion. And it’s not just a violation of a website that wants to see itself as “the press,” it’s spying on an institution that is literally the backbone of the free press.

Gov’t obtains wide AP phone records in probe.

I got upset on Twitter at a couple points during the great “Boston Lockdown,” mostly because I was just anxious about everything going on and and easy to upset. But, specifically, I got upset at posts I thought were implying that the scale of the police operation was some sort of misuse of police power.

Here are some things I observed on Friday:

Traffic continued all day on Route 9, a major but not limited-access highway at the end of my street.

I heard on the police scanner feeds that I found on the Internet officers escorting someone back to their home in Watertown to get medicine, and trying to figure out how close they could get a bus to pick up a disabled resident. I heard a request for less-than-lethal shotguns, which was interesting both because they weren’t just using lethal weapons, but also because they’ve gotten rid of the term “non-lethal” since that’s not always the case (as Boston police know from an incident a few years ago). At the end of the day (and I was probably listening to State Police channel separate from the FBI who actually made the arrest) I heard the caution they were taking to get the suspect in custody without anyone else getting hurt.

We received a reverse 911 call advising us to “shelter in place.” It seemed like the prudent thing to do. But it was not a threat, and I don’t think anyone who really needed to get any place couldn’t, except for a specific neighborhood in Watertown.

And, the bottom line is that no one else was hurt after the initial shoot-outs. And no one was arrested (that I’ve heard of).

As far as the enormous deployment of assets including SWAT and military response, well, that’s just how they do things. On a smaller scale, if you call to report a fire, you can’t ask them to only send one guy with a fire extinguisher; they’re going to send the engine and the ladder truck and probably police and EMS, and send them back when they’re not needed. And I’ve noticed that’s generally how emergency response agencies respond: deploy whatever assets you can just in case you need them. The alternative, I think, is to expect Andy Griffith backed up by Opie as all Mayberry needs to stay safe. But I don’t think that if this situation was, say, left to only actual Watertown officers to respond in their cruisers with old fashioned six shooters it would have had as good an outcome.

I’m not an anarchist. One of the great things about living in a democracy is that the police are here to protect us. And, it is a bit scary that to do so, they need to be able to respond with enough force that, if they misuse it, could take away our rights. I can think of cases, like the pepper spray incident during Occupy Oakland, or the NYPD’s treatment of protesters during the RNC, where, as a citizen of a democracy, I have some concern. But this was not one of those cases, and we should judge the police by their actions, not by what gear they come prepared with. This was exactly the situation we need strong law enforcement for and they deserve credit for a job well done.

I’m amazed by the overwhelming 85% support for Question 1, “Right to Repair,” in Massachusetts.

Here’s a summary of the question (from boston.com):

Should auto makers be required to give owners access to the same diagnostic and repair information that dealers and authorized repair facilities have?

I suppose people will vote yes on this because they expect it will hit them in the pocketbook when they get their car serviced. But it’s also a vindication that people don’t think it’s wrong, and shouldn’t be illegal, to do what you want with stuff you’ve bought. I thought maybe I was crazy or at least living in a tech bubble from hearing that our elected leaders favor things like SOPA or TPP. Years ago I wrote to Barney Frank on the issue, and he strongly disagreed with me. And what to make of Chris Dodd’s new job?

Now, here are some more referendums I’d like to see pass:

• People should have the right to jailbreak their devices. (This is now legal for iPhones–but not iPads nor other devices–because of a bureaucratic exception, not by right in the law.)
• People should have the right to copy DVD’s to their iPad (without paying extra for a “digital copy,” like I did with the last DVD I bought).
• People should have the right to keep, permanently, a book they’ve bought on their Kindle; it’s not a rental.
• People should have the right to bring a book home with them from an overseas trip. It should be clear in the law this isn’t the same as a mass counterfeiting operation.
• People should have the right to put their dancing baby video on the Internet without licensing the music on the radio in the background.
• Girl Scouts should have the right to sing Happy Birthday at camp, without relying on the forebearance of those who could sue them.
• People should have the right to create their own prayerbook with their church/synagogue’s liturgy, and not be told not to share it.

By the way, I don’t jailbreak my iPhone, and I take my car to the dealer for service. But I like to have that choice.

I’ve long been a fan of open-source software. First of all, because you don’t have to pay for it, and who isn’t a fan of free? Second, even compared to closed-source free software, I prefer open, because I can rely on it. I might never look at the source code, but knowing that one can gives me some assurance that there isn’t anything bad (spyware, viruses) hiding and that I can continue using the software even if the original author stops providing upgrades or takes his business in a different direction.

Like a lot of other people in the technology industry, I aslo tend to see free software as something more than that, as a moral good, and intellectual property (IP) rights like a dangerous weapon that needs to be controlled. (With apologies to the NRA: “Patents and copyrights don’t kill innovation, patent and copyright holders do.”)

And after a lot of reflection on the matter, I’ve figured out why I feel this way: I have no personal upside. I don’t make money from IP rights. And on the downside, and I can lose money when others decide to exercise their IP rights. That doesn’t seem fair.

Here’s a thought experiment: If, like a songwriter represented by ASCAP, I got regular royalty checks for each line of code still in production that I’d written at some job years ago, would I feel differently? Or if I was guaranteed an on-screen credit and chance at an Oscar like a union technician in a Hollywood movie?

But I’m not complaining. I have a good job and make a decent living. If I stop working for my current employer, they own that work I’ve done, and that seems fair; I was reasonably paid for providing a service. But, while I’m not making money from licensing IP, I still have the downside of costs and risk of licensing it from others.

And writing software is, in my opinion, providing a service. Software has a pretty short half-life, and whether you hire developers to write software to use or to sell, you need to keep developers on the payroll to be valued as a software shop. No one is making money selling two-year-old software, at least not without ongoing investment in upgrades and support.

Judge Richard Posner of the 7th U.S. Circuit Court of Appeals in Chicago came to basically the same conclusion recently:

Advances in software and other industries cost much less, he said, and the companies benefit tremendously from being first in the market with gadgets — a benefit they would still get if there were no software patents. “It’s not clear that we really need patents in most industries,” he said. “Also, devices like smartphones have thousands of component features, and they all receive legal protection. You just have this proliferation of patents,” Posner said. “It’s a problem.”

via Judge Posner: U.S. patent system out of sync – chicagotribune.com.

It was wonderful to see our legal system take this view, which I’d usually associate with underdog advocates who can’t actually afford a day in court.

I’m not against all forms of intellectual property or its strict enforcement. I don’t support piracy or counterfeiting; that’s legally and morally wrong and I think it’s unfortunate that the cause of online freedom sometimes gets mixed up in defending it. Nevertheless, I see IP as a modern policy construct, not in the same category as the biblical “thou shalt not steal.” A purpose of IP is to encourage investment in innovation by providing investors with a better return, and laws should be calibrated so they’re fair to all.

Perhaps I need to find a way to own some IP that can generate some returns. Then again, perhaps creating IP, not owning it, is more fun.

This post is licensed under a Creative Commons Attribution-ShareAlike 3.0 Unported License.

It’s a mistake to conflate size with evilness and blame everything on “corporations.”

When people complain that mandated health care is bad for small business, no one points out that what they’re really saying is “I’d rather keep my profits than give my employees health care like a larger business would.” No one is complaining about small independent mortgage brokers who pushed through bad deals while flying under the radar of any attempt at corporate responsibility. No one complains about nonprofits who think their good works are an excuse for exploiting employees and cheating vendors.

Not that all (or even most) people and organizations in the above categories are to blame. But the ones that are, are certainly happy to see you blame “corporations.”

I think the problem is the way things like government debt or “socialized medicine” get talked about public debate now as if they’re axiomatically bad, instead of inherently bad things like intolerance, sickness, or war, that government policy is after all a tool to prevent.

In a nation of 300 million people, you can’t simply blame the fact that there are institutions large enough to feed, employ, and serve lots of us. It is going to take some really big farms, and really big banks. Something is wrong with the state of the social contract, if we ever had one, I’ll admit: you should be able to go to school, play by the rules, and not get tossed aside. But while some big organizations and their leaders are part of the problem, we also shouldn’t toss aside people and organizations that can be part of the solution. And we need big solutions.

It seems like you can find everything on the Internet. Which is why it’s so important to point out when things that matter aren’t on the Internet.

Bogus copyright and trademark complaints have threatened all kinds of creative expression on the Internet. EFF's Hall Of Shame collects the worst of the worst.

via Takedown Hall Of Shame | Electronic Frontier Foundation.

Here is my recurring nightmare version of the American Dream:

1. Have an idea for the next .com, Web 2.0, etc. success story.

2. Decide I need to leave my job and start my own company to develop the idea properly.

3. Hire Cheryl on to manage the business.

4. The company grows successfully yet organically, remains a small family-friendly concern, and we are able to offer our employees health insurance.

5. One of our employees, or worse, someone in the family gets cancer, it metastasizes and requires intensive chemotherapy.

6. Our insurance company, directly through rescission or effectively by raising our rates, drops our coverage.

7. I die homeless wandering the streets of Boston.

At step 3 I am taking on extra risk by putting all the family’s financial eggs in one basket (but that’s why it’s a dream). And thankfully, things could turn out better in Massachusetts thanks to an individual mandate and non-profit institutions committed to their mission (but it’s a nightmare, too). Admittedly, I might never start my own company, but small companies like this really do exist–I’ve worked for a couple of them before my current large-organization job.

Republicans say health care reform is bad for small business. But doesn’t the current system penalize small businesses that actually provide health benefits?

Don’t we get insurance to protect against just this sort of bad luck in the first place? How can anyone (unless they’re on Medicare, and selfishly care for no one but themselves) not wish for change–and not expect their representatives to be working constructively toward it?

A priest, a rabbi, and a minister walked in to an inauguration. Sounds like a joke, but this was the normal way of doing things at one point. Water down the religious elements so much that they would be palatable to the majority, and not very religious. It almost makes religion the joke.

Much was made about Rick Warren being the minister to deliver the invocation at Obama’s inauguration. He is against gay marriage and used the name of Jesus in the invocation. I think this was actually a good thing. I don’t agree with him; I don’t believe Jesus was the son of God and my rabbi permits gay marriage.

I think that we have actually improved the separation of church and state by recognizing that people of various faiths don’t have to agree on their religious beliefs, so long as we can all participate in our democracy.

One of the things I found challenging about voting this morning is that you are confronted simply with the candidates’ names. There are no graphic clues to help you choose which one to vote for. They are not organized by party or any other characteristic.

Moreover, they are not in the font and color we’ve come to associate with the candidates: McCain in the Optima font with a gold device on a navy blue background; Obama with his rising-sun-over-fields logo and heavy use of the Gotham font on a lighter blue background (although I realized while looking for an image to place above, his name is usually in a complementary serif font). So, I have to stop and think about it, and I think there must be a certain amount of human error that this causes.

We are used to this from store packaging – if you are looking for Tide you grab a bottle with certain shades of orange and yellow, and if the store-brand detergent wants to compete they make their package as close to the same shades as possible. Maybe candidates should be allowed to submit a logo and their names in a specific font. While it might seem like too much marketing, it might actually help ensure people vote for the candidate they intended.