Ramblings

This is a bit of a digression (which is filed under "Ramblings") but then, I'm prone to those, and why go into business for yourself if you don't want to digress every now and then, eh?

The clamor on the web over the discovery, and subsequent purchase, of a prototype next generation Apple iPhone by tech rumor/news site Gizmodo has been dwarfed by the furor unleashed when it was revealed that California police later raided the home office of Jason Chen, the editor responsible for the story generated by the original incident. Because these are mostly bloggers reacting to the search and seizure of another blogger's technological assets, the stories are running ten to one against the cops, with the few supporting exceptions largely coming from die-hard Apple fans who felt the company was wronged and are hoping for a comeuppance for Gizmodo.

The police are playing it pretty close to the vest with their investigation so far, which has made it easy to attribute a sort of Big-Brother-like malicious intimidation to the act, but I think that's premature. If it's true that police are often overly secretive, it's also true that exposing too much information too early in an investigation can queer the pitch and result in the perpetration of injustice, and I think a little patience (certainly more than has been exhibited so far) is in order. The time and place for a judgement of their actions is in a courtroom when all the facts are on the table. It's way too early for that to happen.

The speculation so far revolves around two possibilities: one, that they are investigating the original discoverer of the lost phone for theft (according to most interpretations I have seen so far, California law is a little fuzzy on this point but a prosecutor could certainly argue the original finder did not make the required "good faith" effort to return the device that is required to keep the act from becoming a theft), or two, that they are investigating Gizmodo for receiving stolen goods. The five thousand dollars the company paid for the device seems to indicate they knew there was something less-than-kosher about the deal.

It's entirely possible the police are investigating both and don't have a firm idea what happened. That's why investigations occur. You don't always know what the charges are going to be until you unearth the evidence, and this is a beneficial feature of our system in my opinion. If that's a fishing trip, as some people are saying, then so is every criminal investigation. While the crime is pretty clearly overblown, it nonetheless appears to have occurred. If you're not going to allow the police to get to the bottom of such things, cut them a severance check and send 'em home... there's little other use for law enforcement agency.

The primary argument against the search and seizure warrant has been that Chen is protected under both California and federal journalist shield laws, provisions made to protect First Amendment free speech rights. If anything, this portion of the debate has been even less clear than that dealing with the police investigation. Bloggers are simply throwing "shield law" out there as if it protects against all evils, without much substantiation. Few have bothered to actually read the text in question, or apply it to the situation at hand. Instead, much is being made of a single, unsupported statement in this Wired post, which says, "The government cannot seize material from the journalist even if it’s investigating whether the person who possesses the material committed a crime."

This is supposedly a provision of the federal Privacy Protection Act, but from my reading of the law (IANAL, of course) the Wired statement, if not entirely incorrect, is at least incomplete. There are at least two exceptions under which material can be seized even from a journalist, and at least one of them seems to apply, albeit rather narrowly. Indeed, it would be very strange if the government were as restricted as Wired claims; almost any crime committed by a journalist could not be investigated fully. Subpeonas can be used rather than warrants, but the potential and temptation for destruction of incriminating evidence by the guilty party would seem to militate against them.

People have gone back and forth over whether Chen even is a journalist and so worthy of such protections anyway, but most seem to agree that California law is reasonably clear on that point, and in any event I would argue that bloggers fill a much more important role than the traditional media does in fulfilling the promise of a free press in a democratic society. On the other hand, I get paid for blogging (not on for this blog), and wouldn't consider myself a journalist. There is certainly room for reasonable people to disagree on that point, but I think the important factor is that the sunshine we think is healthy in our society is increasingly being let in by bloggers, whether paid or not, and so the protections we feel should be reasonably extended to those actors in our system should apply to them as well.

On the other hand, who then is not a blogger for these purposes? Everyone uses Twitter, LinkedIn, Facebook, Buzz, or a hundred other blogging or micro-blogging platforms. Is it time to extend protections to everyone against turning over evidence of criminal activity? Because that argument could certainly be made by enterprising lawyers looking to bog down the prosecution in whole hosts of different cases. "Your Honor, my client downloaded and stored those MP3 files as part of an ongoing story about how vile the record companies are, their seizure and the use of meta-tag information to identify the sources and dissemination was a clear violation of the PPA and we move they be excluded from evidence."

Has a nice ring to it, doesn't it? But it may not sound so great when it is a file full of your credit card numbers and the same motion is made.

So, Chen's case may be more clear-cut than some (despite one of the principals of Gizmodo denying, not long ago, that the company was any sort of journalistic endeavor), but most of the knee-jerk reaction so far fails to look at the implications of their arguments on technology law enforcement as a whole. If they're right, there would seem to be very little that any "blogger" would have to fear (at least in California) of committing most technology-related crimes.

As we move later in the day today, some more informed and well-reasoned analysis is coming out, and it looks as if the police may have more solid ground to stand on than some would hope. I imagine that the most likely conclusion to all this will be some hasty apologies and agreements not to sue and that the whole issue will never see in the inside of a courtroom, but once again it seems that technology has far outstripped the comprehension of legislators.

Because pretty soon, it's going to be the only smartphone!

I've been one of the few people that have bothered to defend Apple in their recent patent infringement lawsuit against Google-heavy handset maker HTC, but their legitimate right to defend whatever efforts were required to create such an innovative product is starting to get stretched a little thin in light of recent information. It's been clear that the HTC suit was aimed more broadly than at just HTC, but while many observers have interpreted the goal as being the eventual establishment of various cross-licensing agreements, the reactions detailed in the various posts on Techmeme from other handset makers reveal panic and frenzied efforts to remove disputed features from their own products. It doesn't sound as though licensing has been put on the table as a viable option.

Critics of software patent law and practice have been having a field day with the Apple suit and the chilling effect that those patents have had on the smartphone field in general. It's an old and accepted argument that patents can stifle evolutionary innovation, and the system has made that trade-off to encourage revolutionary innovation, ensuring that individuals and businesses can invest in research and development to bring new ideas to market without being immediately copied and squashed by others with more resources. It's accepted that in the long term the benefit to society is greater even with the limited grant of monopoly to the original innovator.

Software patents and the greater pace of advance in the industry have called that assumption into question, and Apple is apparently going to great lengths to demonstrate just how bad for consumers this state of affairs might be.

It's an oddity that I often find unintentionally related threads of stories on the front page of Techmeme and other tech news sites, and today has been no exception. Together with the news of Apple's strong-arm techniques against other handset makers, today finds an analysis of the invasive and restrictive license agreement required to develop applications for the iPhone (which, unlike competitors, tightly governs all applications that can run on the device). So not only will Apple be your only phone, but Apple will also okay your only Apps, and you better not want porn or bikinis or anything else that might offend Apple or AT&T.

And as if to point out the idiocy of the original patents that all this restriction is based on, another article points out a new patent application from the company, one that covers the use of the phone as an electronic key. So, pretty soon all you Prius owners are going to have to report back in to have your cars retrofitted to use old-school physical keys instead of fobs, I guess.

It's strange and a little sad that a genuinely innovative company like Apple, not one of the leech-like patent trolls that accumulate and sue as their primary business function, but a company that has created truly new and interesting technology, might be the company to finally push the system hard enough to make it obvious to everyone that so much power for so long a span is absolutely a detriment to consumers. Because when you combine the suppression of competing platforms with vice-like control over the content on your own platform, you are unquestionably hurting consumers. It may not be long before the issue inflames passions as much as abortion or gun rights. You can have our Android handsets when you pry them from our cold, dead fingers.

So, while I was in Vancouver for the Olympics last week, I didn't pick up too many souvenirs... I noticed that stuff wasn't exactly flying off the shelves, and figured I might wait a week and get much better deals. Surplus stocks of hats, t-shirts, and maple syrup are no doubt going to be hitting the market at much reduced prices after the hordes of tourists leave town. Anyway, this being my plan, I thought idly as I watched the Closing Ceremonies tonight that I would drop by the official store and see if the discounting had yet begun. Instead, I saw the message at left, and thought, "Wow, that was some tremendously poor timing."

But then I checked back a while later and saw this instead:


Server meltdown! Apparently, I wasn't the only one with that bright idea. Looks like the market may show a greater demand after the Games are over than while they were ongoing. The bad timing was mine!

I ran across Chuck Blakeman's "Why Small Business is Fed Up with Government" at an apt time, as I am helping my wife with her state B&O taxes for her small business. IMS reports quarterly and has a rather less complicated business model; my wife sells quite a bit of electronic stuff online in addition to her local activities, and this throws the tax form preparation process into a bit of a tar pit, particularly with the 2004 Washington state decision to treat electronic media as "tangible personal property" for tax purposes.

The state's concern is real; as more and more media becomes electronic and shifts away from physical goods such as books and DVDs, a considerable portion of the major tax base here, which is derived from a state sales tax, is at risk. Particularly with retail giant Amazon based in Seattle, the state stood to lose a significant chunk of the tax base it relies on to serve infrastructure and other local service needs.

The approach they decided to take is less laudable. Rather than sitting down and looking at the implications and reality of the shift toward electronic goods, they simply made a few punctuation changes in their definition of tangible property, making a mockery of the term, and throwing the whole process of tax preparation for the small electronic media business into disarray. It sounds like an easy change to make, but many of the assumptions which hold true for physical goods don't hold up for electronic goods, and make the laws governing the process utterly assinine and impossible to follow sensibly.

So I saw a commercial on TV the other day for a high speed wireless Internet service covering the Puget Sound region. They called themselves "Clear" and I thought, "Wow, Clearwire is going to have a conniption, that's the same thing they do!"

Then, of course, the penny dropped.

I suppose it finally occurred to someone over there that the "wire" in the name brought up exactly the wrong connotation for a wireless service. So now they are just "Clear" although their terms and service plans are anything but (prominent on the front page of the Clear website is their bold offer "$30 a month 4G wireless service" while in the fine print you see it's only $30 for the first six months of a mandatory two year term, with hefty fees for early termination). So, same-old, same-old. I remain unimpressed, and it appears the rest of their market does as well. With high-speed wireless adoption coming now more from the bottom up, through cell-phones and their carriers, Clear may have missed the boat, "4G" service or not.