Bring On the Backscatter

Heard the growing protest over deployment of backscatter scanners at airport security?  Heard of National Opt-Out Day on Wednesday November 24, otherwise known as the day before Thanksgiving, otherwise known as the busiest air travel day of the year, on which protesters urge air travelers to opt-out of passing through scanners and submit to lengthier physical pat-downs?  I am not traveling that day–other than two trips to the airport to pick up sons arriving from Miami and Chicago–but if I were, I would volunteer to be first in line to pass through the scanner.  Ever since an orthopedic surgeon installed two hunks of metal in my right hip airport metal detectors ring like the Daily Double when I walk through.  A TSA employee shouts “male assist,” I’m shunted aside to the Box of Shame and I stand arms outstretched, palms up, while another TSA employee runs his hands over my arms, sides, stomach, bag, legs, and (using the back of his hand on the latter) crotch and runs his fingers inside my turned-down waistband.  I’ve been through more than a dozen pat-downs.  They are time-consuming, physically intrusive, and annoying.  At Logan Airport last spring I used a scanner, which in seconds revealed I’m packing not a weapon but thisHip resurfacting .  I was waved through, no pat-down, like everyone else.

As one who has experienced both a faceless TSA employee in another room looking at my unidentified naked image on a screen and a TSA employee staring me in the face and running his hands all over my body, I’ll take the scanner every time.

Gap Between Outrage and Law

Widespread outrage followed the September suicide of Tyler Clementi, the Rutgers student who killed himself after his roommate and another surreptitiously, via webcam, viewed Clementi kissing another man.  Cries to punish followed outrage, and New Jersey prosecutors charged Dharun Ravi, the roommate, and Ravi’s friend Molly Wei with invasion of privacy and transmitting a sexual encounter on the Internet.  Clementi’s suicide was one of a spate of suicides by gay teenagers in recent months, and many called for Ravi and Wei also to be prosecuted for anti-gay hate crimes.  Peeping via web cam and computer on two men making out and sharing and laughing about it with others must be a crime.  Right?

Not necessarily, as discussed in Rutgers suicide case poses test for NJ privacy law.  Does Ravi’s Twitter message–Roommate asked for the room till midnight. I went into molly’s room and turned on my webcam. I saw him making out with a dude. Yay–show the anti-gay bias necessary to prove beyond a reasonable doubt that a crime was committed because of the victim’s protected-class status?  The message contains no pejorative terms, there’s no independent evidence of Ravi’s or Wei’s animus towards gays or lesbians, and their family and friends will testify that both had gay friends.  Making out with a dude was, as far as we know, a statement of fact.  Titillation over a roommate’s romantic same-sex encounter is a long way from a hate crime.

And for their to be a hate crime, there first must be a crime.  Here are the relevant provisions of New Jersey’s criminal invasion of privacy statute (emphasis added):

1. a. An actor commits a crime of the fourth degree if, knowing that he is not licensed or privileged to do so, and under circumstances in which a reasonable person would know that another may expose intimate parts or may engage in sexual penetration or sexual contact, he observes another person without that person’s consent and under circumstances in which a reasonable person would not expect to be observed.

1.b. An actor commits a crime of the third degree if, knowing that he is not licensed or privileged to do so, he photographs, films, videotapes, records, or otherwise reproduces in any manner, the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, without that person’s consent and under circumstances in which a reasonable person would not expect to be observed.

The incident’s reported facts do not support a charge of third degree invasion of privacy.  Assuming the webcam video was saved and not just streamed, Ravi and Wei observed Clementi doing no more than kissing another man.    Fourth degree invasion of privacy may fit the facts, if it was reasonable to believe the encounter would result in exposed “intimate parts” or actual sexual penetration or sexual contact.  Proving that on the reported facts beyond a reasonable doubt–no nudity, not even partial nudity, just kissing–will be a challenge.

Put simply, New Jersey has a weak criminal case against Ravi and Wei–and that assumes their culpability is equal.  Ravi used Wei’s computer, but appears to have been only a bystander, not an actor.  Remember the failed prosecution of Lori Drew for her role in Megan Meier’s suicide–outrage without a crime is not an unusual outcome in controversial Internet-related activities.

Zadie Smith on Facebook

I recommend Zadie Smith’s piece–titled Generation Why?–in the 25-November New York Review of Books.  It explores Facebook–which she characterizes as “the wild west of the Internet tamed to fit the suburban fantasies of a suburban soul”–, the movie The Social Network, and Jaron Lanier’s book You Are Not a Gadget: A Manifesto.  It’s a self-described 1.0 person’s take on what Facebook is and what it is not, suffused with Smith’s humor and soul, and a joy to read, studded with succinct dead-on observations like this:  “To [Internet] advertisers [looking at Facebook], we are our capacity to buy, attached to a few personal, irrelevant photos.”  Facebook reduces relationships to the sum total of a limited range of database entries defined by “the suburban fantasies of a suburban soul.”

The last defense of every Facebook addict is: but it helps me keep in contact with people who are far away! Well, e-mail and Skype do that, too, and they have the added advantage of not forcing you to interface with the mind of Mark Zuckerberg.

Oklahoma Reaffirms Law of Gravity

A federal judge in Oklahoma–apparently visiting the state from the 21st century–enjoined enforcement of the recently-passed referendum banning consideration of Shariah law, among other things, from consideration by Oklahoma courts.  On November 22 the judge will hear arguments on whether the “Save Our State” amendment violates the First Amendment.  70% of Oklahomans (Oklahopersons?) voted for the ban.  To put it another way, seventy percent voted in favor of a law banning a practice that has not happened, and has no legal basis for happening, under the U.S. Constitution.

Viral Extortion

As described here, Kenzero is a diabolical Trojan virus that blackmails Internet porn users with their  browsing histories.  As described in the linked article from The Telegraph it enters a computer when a user downloads sexually “explicit Hentai anime” (Googling the term was as far as I wanted to go). It then activates,

popping up an installation screen that prompts the computer user to type in personal information. The virus then takes screengrabs of a user’s browsing history, and publishes a list of all the sites they have visited online. A dialog box or email is then sent to the user, demanding a credit card payment of around £10 to remove the list from the internet.

The article does not say whether those responsible for the virus actually remove the incriminating browsing history.  Two morals:  keep your virus software up-to-date, and if downloaded porn asks you for your name, just say no.

No Safety in Numbers

Apropos of nothing other than my curiosity, here are tag clouds of the most popular usernames and passwords from Dragon Research Group. “a not-for-profit, non-revenue generating entity, comprised of a geographically dispersed set of trusted volunteers who are passionate about making the Internet more secure.”  If your username is user and your password is password then the good news is, you are not alone!

“Ohhhhh-Kla-Homa . . .”*

” . . . where the wind comes whistling through our brains ”  last week approved State Law 755, which mandates that Oklahoma courts “shall not consider international law or Sharia Law.”   70% of Oklahomans voted for the Sharia Ban, the constitutionality of which has been challenged in a federal lawsuit filed last Thursday.  (No word on whether Oklahoma will consider any of my suggested ballot initiatives.)  Why did Oklahoma need to instruct it’s courts not to even think about Sharia Law?  Is the ban reflective of this country’s virulent anti-Islamic sentiment?

A co-sponsor, state Sen. Anthony Sykes, denied it sought to stigmatize Muslims. “We’re not trying to send any sort of message here,” said Mr. Sykes, a Republican. Rather, he said, Oklahomans wanted to insulate their judiciary from un-American influences. While no Oklahoma court ever has cited Shariah law, “we are on a slippery slope,” he said.

The linked WSJournal article in which this quotation appears notes that other states

have considered rules that restrict judges from making decisions that take into account foreign or international legal materials . . . Only Oklahoma’s measure singles out a particular religious tradition, []  though a proposal in Arizona lists Shariah along with canon law, Jewish law and karma, a conception of fate in Hindu and Buddhist traditions.

Wouldn’t preventing a court from considering karma itself be bad karma, resulting in all sorts of undesirable results?  I guess if you elected governor Jan Brewer and Sheriff Joe Arpaio, you aren’t worried about karma.

Mr. Sykes said he wanted to protect the Oklahoma judiciary from the influence of “Justices Ruth Bader Ginsburg and Elena Kagan and, I’m sure, Sonia Sotomayor, given her political leanings,” who he believed were inclined to rely on international law.


*Recognizing that this may not trigger instant recognition in all AFC readers, here’s Oklahoma–sung by Hugh Jackman.

Supreme Court Oral Arguments

Short of reading the transcript or listening to a recording of last Tuesday’s Supreme Court arguments in Schwarzenegger v. Entertainment Merchants Assn., the First Amendment challenge to California’s video games law, the WSJournal article Justices Split on Violent Games provides a succinct summary of the  justices’ questions and comments.  They range from Scalia’s “What’s next after violence? Drinking? Smoking?” to Breyer’s “what sense is there” to a 13-year-old being able to acquire a game showing “gratuitous torture of children” but not “a picture of a naked woman” to Kagan’s “Mortal Kombat is an iconic game which I am sure half of the clerks who work for us spent considerable amounts of time in their adolescence playing.”

Those interested in the Supreme Court or in pending or decided cases should bookmark the Supreme Court’s Oral Arguments page and Cornell Law School’s research guide to U.S. Supreme Court Oral Arguments.