Law – Page 36 – a sibilant intake of breath

100 days to Copenhagen

We are now 100 days away from the climate change conference in Copenhagen. Between 12,000 and 15,000 people are expected to attend and, at best, the conference will produce a treaty to succeed the Kyoto Protocol.

Canada is basically going to the conference with no intention of negotiating. The government has been clear that their climate plan is both the least and the most they are willing to do. As such, we won’t be making offers of the sort: “if other countries do X, we will do Y.” Hopefully, the critical players (the US, EU, China, and Japan) will be able to hammer together an agreement that everyone else will then latch onto. When it comes to getting started with a serious program of global climate change mitigation, we are way behind schedule.

Ghost: Confessions of a Counterterrorism Agent

I became aware of Fred Burton through the free weekly defence briefings put out by STRATFOR, his current employer. They stand out from other media reports, both as the result of the details they focus on and the thrust of their overall analysis. While I wouldn’t bet heavily on them being entirely correct, they do play a useful counterbalancing role when read alongside media stories that are generally rather similar.

Ghost describes Burton’s history with the Diplomatic Security Service (DSS) between 1986 and 1993, with an epilogue in 2004. Burton’s work involved collecting intelligence, investigating plots and attacks, protecting diplomats, and so forth. He goes into detail on several of the investigations he was involved in, including the assassination of Pakistani President Muhammad Zia-ul-Haq and the capture of Ramzi Yousef. He also describes some of the tactics and strategies employed by the DSS, as well as by other law enforcement and intelligence agencies. These include the operation of motorcades, cover techniques, and countersurveillance: a tactic he claims special credit for deploying in the protective services.

The book’s greatest strength lies in the details it includes, on everything from the character of different intelligence agencies to equipment used to various sorts of tradecraft. While the breathless descriptions can sometimes feel like the content of a mediocre spy novel, the detailed technical discussions offer insight into how clandestine services actually operate. Of course, it is virtually certain that security and secrecy led to parts of the book being incomplete or distorted. Still, it has a candid quality that makes it an engrossing read. One interesting perspective offered is on the connections between different states and terrorist groups: particularly the relationship between Iran and Hezbollah; between the Palestinian Liberation Organization (PLO), Yasser Arafat, and various terrorist groups; as well as the ways in which modern terrorist tactics evolved from those developed by Black September, the group that carried out the massacre at the 1972 Munich Olympics.

At times, the book’s language is overwrought, especially when Burton is discussing the innocence of the victims of terrorism and the ‘evil’ nature of those who commit it. His reflections on his own ethical thinking may be genuine, but seem somewhat hackneyed and unoriginal at the same time. He never portrays American intelligence or police services as having any flaws, with the exception of when bureaucrats get overly involved and stop brave and effective agents from doing their work well. No consideration is given to the abuses that can occur when effective oversight is not present. Burton is also unrelentingly hostile towards the media: accusing them of offering superficial analysis and being eager to divulge information that undermines the clandestine efforts of intelligence organizations. The book is also a bit too well sprinkled with cliches, such as decisions being made and information being assessed ‘above Burton’s pay grade.’ In general, Burton seems a bit too willing to assume that all US intelligence agents are working on the side of the angels and that oversight and accountability can only hamper their efforts.

One interesting passage mentions how little time was required to circumvent the encryption on Yousef’s laptop. This makes me wonder what sort of algorithm had been employed and how it was implemented, as well as the techniques used by those breaking the encryption. I suspect that the actual encryption algorithm is not what was overcome, at least not through some brute force means. It is far more likely that they were able to compromise the password by comprehensively searching through the data on hand, including temporary files and perhaps contents of RAM. It does you little good to have a hard drive encrypted with AES-256 if it is possible to recover or guess the key in a short span of time.

In general, the book is one I recommend. It has a good authentic feel to it and includes some unusual perspectives and operational details. Burton’s personal dedication, as well as that of the agents he serves with and admires, is both convincing and commendable.

Language changes in Canada’s foreign policy

Apparently, the Conservative government has ordered Canada’s diplomats to stop using the terms ‘child soldier’ and ‘international humanitarian law.’ I heard about it on CBC’s The Current before leaving for work today, and it doesn’t seem to have been picked up much by the mainstream press. Apparently, “gender equality” is also on the chopping block. The changes may have been partly motivated by the continuing saga of Omar Khadr.

The basic points made by those interviewed on The Current are sound ones: that this is an underhanded way to effect foreign policy changes, especially given how the Conservative platform in the last election basically ignored that area of policy-making. Also, the changes run against Canada’s tradition of advocating the humanitarian side of international law, including through the efforts of the Mulroney government to address some of the issues involving children in war situations.

If this government wants to take a public position to back away from international humanitarian law and the protection of children exploited in wartime, they are within their rights to do so. Trying to do it by stealth, however, is a disservice to Canada’s internationalist traditions, its civil servants in the foreign service, and the Canadian public. Developments in areas like the prosecution of war criminals are among the most significant and positive in the recent history of international relations. It would be a shame if Canada took up an obstructionist position (either openly or covertly), especially at a time when the new American administration might be able to soften the rejectionist American stance on institutions like the International Criminal Court.

Ethics and autonomous robots in war

The increasing use of autonomous robots in warfare raises questions about how they can be used ethically and in concordance with international law on armed conflict. While unarmed robots like those used by bomb squads are ethically unproblematic, those with both weapons and an independent capability to make decisions about their use are quite different. This is especially true if they will be used in environments where civilians could be injured or killed.

The BBC has an article about some of the concerns that have been raised and issues that have been considered. In some ways, the trade-offs are similar to those with existing technologies. For instance, there is often a trade-off between how much risk an army exposes its own personnel to, and how effectively it can avoid causing civilian casualties.

Consequences of fear and unchecked state power

A recent editorial on America’s sex crime laws is a nice demonstration of how the protection of the individual from the unjust application of power by the state is one of the most important kinds of human security. Pursuing criminal charges against teenagers who have sex with other teenagers – and even those who send explicit images of themselves to one another – is a lunatic way for the state to apply the law. Rather than protecting anyone, such a petty act of over-enforcement can seriously wreck the lives of those the law was intended to protect: especially when they end up on life-long public sex offender registries that do not specify what led to their initial arrest. All this becomes even more dangerous as the state gets more and more power to observe the lives of its citizens, shrinking the extent of formally private spheres (such as correspondence) where it would not previously have been watching.

It certainly bears remembering that the state is a beast that walks with a heavy, and sometimes clumsy, step. That’s something that must be borne in mind especially when the population is especially afraid of a nebulous threat, such as sex criminals or terrorists. Failing to appreciate that the application of state power can cause profound harm, as well as protection, to human security is what produces injustices like torture, Guantanamo Bay, the internment of those of Japanese descent during the Second World War, and so forth. When people are afraid, they care little about the rights of those they fear; equally damagingly, they show little appreciation for how harsh new approaches undermine the very systems they are established with the intention of protecting. Set upon the wrong course, the state is a far more dangerous entity than any terrorist organization.

Finally, there is the well-reasoned furour about the RCMP performing its own criminal investigations on officers. In any large organization, most people will act to preserve the interests of the group – even at the expense of committing injustices against outsiders. They will naturally give the benefit of the doubt to their colleagues, and they will also share loyalty with those risking their lives for the same purposes. To have any credibility, investigations into such organizations must be conducted by outsiders with independence and a strong mandate to investigate and expose wrongdoing.

Funds for nuclear plant decommissioning depleted

Apparently, the variability of the stock market is having an impact on the dismantling of American nuclear power plants, by driving down the value of the investments set aside to pay for it:

During the past two years, estimates of dismantling costs have soared by more than $4.6 billion because rising energy and labor costs, while the investment funds that are supposed to pay for shutting plants down have lost $4.4 billion in the battered stock market.

The process of decommissioning involves moving millions of pounds of radioactive waste, much of it concrete. Maine Yankee, a plant that is currently being decommissioned, has over 100,000 tonnes of material being carted off one trainload at a time. The American Nuclear Regulatory Commission has polled 18 nuclear power plants on how the downturn is affecting their decommissioning plans. In some cases, plans for decommissioning are being delayed for as long as sixty years: during which time, the plants are simply expected to sit idle.

Having inadequate private funds for decommissioning is a major cause of environmental problems, for instance with facilities like mines. They also cause situations in which profits accrue to investors and costs are shunted off onto future taxpayers. The possibility is one that deserves to be borne in mind when developing national energy policies.

Problems with revocable media

One of the biggest problems with the way information is now distributed is the increasing limitations on how you can use it. With physical media like books and CDs, you had quite a few rights and a lot of security. You could lend the media to friends, use it in any number of ways, and be confident that it would still work decades later. There is much less confidence to be found with new media like music and movies with DRM, games that require a connection to the server to work, mobile phone applications, Kindle books, etc. Companies have shown a disappointing willingness to cripple functionality, or even eliminate it outright, for instance with Amazon deleting books off Kindles. Steven Metalitz, a lawyer representing the RIAA, has stated explicitly that people buying digital media should not expect it to work indefinitely: “We reject the view that copyright owners and their licensees are required to provide consumers with perpetual access to creative works.” Of course, the same people argue that they should be able to maintain their copyrights forever.

The solution to this, I think, is to make it legal for people to break whatever forms of copy protection companies put on their products, as long as the purpose for which they are being broken is fair use. It also wouldn’t hurt to clarify the ownership of such materials in favour of users. A Kindle book should be like a physical book – property of the person that bought it, and not subject to arbitrary modification or revocation by the seller.

Of course, politicians are under more effective pressure from media companies than from ordinary consumers. Perhaps a strong Canadian Pirate Party, asserting the rights of content users over content owners, would be a good thing. Of course, stronger support from mainstream parties that actually hold power would be of much more practical use.

CRTC public submissions and privacy

Quite conveniently, the Canadian Radio-television Telecommunications Commission allows citizens to comment on ongoing matters through their website. Unfortunately, the privacy protections employed in relation to the submissions are lacking. Their website says the following:

The information you provide to the Commission as part of a public process (i.e. comments, interventions or observations) is entered into an unsearchable database dedicated to that specific public process. This database is accessible only from the webpage of that particular public process. As a result, a general search of our website with the help of either our own search engine or a third-party search engine will not provide access to the information which was provided as part of a public process.

This doesn’t seem to be true. Searching for my own name in Google brings up the submissions I made to them opposing Bell’s efforts to introduce Usage Based Billing (UBB). The submission includes my full name, personal email address, and phone number.

I complained electronically to the CRTC about this, but got no response. I then sent a letter to the Office of the Privacy Commissioner, with a carbon copy to them. At the very least, the CRTC should obscure email addresses and phone numbers in a way that prevents robots from harvesting them. For instance, obfuscated email addresses can be made to look normal for standard browsers, but like gibberish for most robots. Alternatively, the CRTC could provide a web contact form that lets people contact submitters, without learning their email address. I have no problem with submissions being made public, in the interest of transparency. If it is going to happen, however, people should be clearly informed about it on the page where they submit the information (not some separate privacy information page) and reasonable efforts should be taken to prevent the inappropriate collection of personal information by either people or automated systems.

[Update: 7 August 2009] The CRTC responded to my complaint, and it seems they have come into compliance with their privacy policy.

Cell phones while driving

Over at Slate, William Saletan argues that cell phone use while driving is dangerous enough to warrant a ban. This is because the magnitude of distraction is comparable to an illegal level of intoxication, and because it arises from the mental effort involved in conversation, not the physical handling of a phone. As such, hands-free handsets do not address the problem.

As a cyclist who frequently rides in proximity to cars, it makes sense to me that driving and using a phone should be illegal. Drivers of cars are voluntarily undertaking an activity that poses a serious risk to the lives of others. As such, it is entirely proper to require them to conform to rules that reduce the probabilities of causing injuries and deaths. I am less sure about how the law could be effectively enforced. Technical measures are conceivable, but will always carry the risk of false positives and false negatives. Simply relying on police officers who spot offenders to issue tickets would not be very comprehensive. Can anyone think of a good way by which such a restriction could be enforced?

Privatizing the sea to prevent overfishing

One standard solution to overfishing offered by economists is to essentially privatize the sea by creating individualized transferable quotas (ITQs) that give individuals and firms an incentive to fish at a sustainable level. Where intellectually coherent, the approach can be criticized on a number of grounds.

This Grist post does a good job of doing so. It points out the importance and difficulty of setting an appropriate Total Allowable Catch (TAC), the enormous problem of subsidized overcapacity, as well as bycatch and social justice issues.

ITQs may well be part of a sustainable global fisheries regime, especially where it comes to well-studied coastal fisheries off the shore of a single state with a strong regulatory capacity. When it comes to dealing with the pillage of the open ocean, however, they don’t really stand a chance.