Friday, June 29, 2012

The Obamacare Ruling, for Those in a Hurry

For those who don't want to bother with reading the whole SCOTUS ruling in National Federation of Independent Business v. Sebelius, here's a paraphrased summary:

Mere citizens have for more than a century been regarded as beings of an inferior order, and altogether unfit to associate with the political class either in social or political relations, and so far inferior that they have no rights which the political class is bound to respect, and that the mere citizen might justly and lawfully be reduced to slavery for his benefit.

Thursday, June 28, 2012

Intellectual Property: A Thought Experiment

In the comments on my latest piece at C4SS, there's a little bit of argument over whether the basis for intellectual property is the Labor Theory of Value or Locke's "labor theory of property." While thinking about this, I came up with a thought experiment to test the dedication of proponents to the latter.

It hasn't escaped most people's attention that these days it's possible to drum up computer automation of a lot of tasks ... and if the creator of such an automation process is the owner of what that process produces, then wouldn't it be interesting what might result?

So, let's say I write two programs.

One is a semi- random text generator that I periodically "salt" with words that get a lot of current use and set to work generating complete sentences according to some rules base.

The other is a random picture generator that I periodically "salt" with vague and randomly-customizable object outlines so that it produces, for example, 20 million pictures of chairs today and 20 million pictures of women's dresses tomorrow.

How long will it be before I've generated valid copyright claims on a huge number of novels and women's clothing options?

Hey, I did the work. I wrote the generator and mixed my labor with it. The product is MINE MINE MINE, right?

And if you happen to independently invent something that looks a lot like it, well, I guess it sucks to be you.

Dondero's Law

"Every time Republicans do something stupid and evil, the blame for it lies with those who don't support stupid and evil Republicans."

This time it's the Supreme Court's ruling on Obamacare. Dondero blames everyone who didn't support George W. Bush. Yes, the same George W. Bush who appointed Chief Justice John Roberts, the deciding vote in the ruling that Dondero is upset about.

One reason he blames them is that now they're not supporting Mitt Romney. Yes, the same Mitt Romney who was the original author of Obamacare, the bill that Dondero opposes and that he's so upset SCOTUS ruled for.

No, Eric Dondero is not a fictional Lewis Carroll character. He just plays one on the Internet.

Tuesday, June 26, 2012

It's Just Sic-ening

The constant references in polemic and news stories alike to "illegal immigration" [sic] that is.

By way of public service, I'm occasionally moved to reiterate the simple fact that per the US Constitution there is no such thing as illegal immigration, at least at the federal level. And having reiterated it, I must necessarily re-explain it, so that those who haven't bothered to read the damn thing, or apply a fairly basic interpretational principle to it, or make even a cursory study of history, just might get it through their heads.

Let's start from the back end, with the history: From the ratification of the US Constitution, until the late 19th century, Congress made no laws regulating immigration.

The reason they didn't make any such laws is that they understood the Constitution as forbidding them to do so.

Naturalization (the process of becoming a citizen), they regulated, as the Constitution clearly empowered them to do. Ditto a small tax or duty on immigrants. Bills allowing federal port officials to enforce state immigration regulations, and collect fines/fees for doing so, they also enacted. But actual federal rules on immigration itself, zero, zip, zilch, nada.

That only changed after an activist Supreme Court miracled up a federal power to regulate immigration out of the justices' vivid imaginations in 1875 ... and even then, Congress was apparently suspicious enough of that fairy tale that for another 15 years or so it hung immigration regulations on treaty provision hooks. Much is made these days of Ellis Island as the federal "gateway to America," but it's seldom mentioned that when it opened in the 1890s, it did so as a replacement for the state of New York's immigration processing facility.

Let's take a brief break from the history lesson and look at that basic interpretational principle I mention: The meaning of a law is a function of "original intent" -- that is, what the framers and ratifiers of the law meant that law to accomplish.

Back to history, starting with the text of the three relevant constitutional provisions:

Article I, Section 9, Clause 1: The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.
 Article V: ... no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article ...
Amendment X: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The language is clear: Congress was not only not allowed to regulate immigration prior to 1808, it was not even allowed to amend the Constitution to strike that prohibition until 1808. After 1808, it could have proposed an amendment to allow it to regulate immigration, but until and unless it proposes such an amendment (it never has) and until and unless such an amendment is ratified (which has never happened), the Constitution deems immigration a state issue.

Are there any "original intent" -- or even "strict construction" -- loopholes in that interpretation? No. The issue was debated. Some of the anti-Federalists, who for the most part generally opposed vesting power in the central government, made an exception for immigration, urging that Congress be empowered to regulate immigration to protect "the national character." Their arguments were rejected for three simple reasons:

  1. The southern slave states viewed a congressional power to regulate immigration with suspicion, fearing it could be used to stop the slave trade;
  2. Pennsylvania, which was in the process of industrializing, required mass migration of unskilled labor to power that industrialization and had no intention of putting Congress in a position to stop its economic growth; and
  3. Without the votes of the slave states and Pennsylvania, the Constitution would, quite simply, never have been ratified.
Leap ahead a few years to Madison v. Marbury -- "a law repugnant to the Constitution ... is void" -- and that puts a padlock on the already airtight case.

All federal immigrations are unconstitutional, and therefore void. There is no such thing as an illegal immigrant in federal law. Period. End of story.

Monday, June 25, 2012

Quote of the Week

As is often the case, it's from dL, author of the Liberale et Libertaire blog. And the reason it's the quote of the week is that brings together several things I've been thinking about in a way that I hadn't managed to yet:

Our age of State Capitalism-intertwined in a million different knots with a political economy of State Security-promises to sever the remaining myth: the relationship between capitalism and opportunity, or the "opportunity society." To be more precise, we are about to be given an object lesson that there is no logical relationship between Capitalism and Markets. The collapse of this paradigm, of course, is conveniently timed with the maturation of our State Security Apparatus. The reason you have a National Security State, of course, is largely because of a loss of legitimacy. Our era of State Capitalism will be marked by a general decline in popular sentiment regarding legitimacy. But our "bleeding heart libertarians" seek to reposition libertarianism as the legitimizing face of State Capitalism. You know the thing that served to hollow out your political freedom while reneging on its bribe of eternal economic growth. Now that's quite a historical turn.

I've been kind of outlining a piece I'd intended to call "Why I am not a 'Bleeding Heart' Libertarian." Now I'm not sure I need to bother.

Sunday, June 24, 2012

Lie Down with the Idiotic Idea of a "Homeland Security" Department ...

... get up with raids on flea markets to combat the existential threat of fake Coach bags and DVD burns of hit movies.

The flea market in the article is just down the street from my house (I've seen the federal vehicles be-bopping up and down the road to and from it several times over the last couple of days). Yes, I've shopped there. Yes, it's common knowledge that a lot of the merchandise available there is sold in violation of state-created "intellectual property" monopolies.

So ... is a knock-off DVD of Madagascar 3 a "homeland security" matter?

The alleged theory underlying that assertion seems to be that such "piracy" is a finance channel for international  terrorism. Poppycock. Anyone selling anything anywhere could conceivably be using the profits to finance international terrorism. And if they're paying taxes on their revenues to the US government, they're certainly financing international terrorism.

The real reason that pair of faux-Nike tennis shoes you got for 15% of the "real thing's" retail price is considered a "homeland security" affair is that the companies which make their profits off of state-created monopolies spend part of those profits on bribing/extorting politicians to protect those profits with your tax dollars. So we get a heapin' helpin' of domestic terrorism out of the deal, too. This week, it came to my neighborhood. Next week, maybe yours.

Thursday, June 07, 2012

Headbook: Medical Marijuana Comes Out of the Gray

It seems like cannabis is always on the leading (and sometimes bleeding) edge of social evolution, which is why I find it interesting -- as a market anarchist, I often see cannabis trends as indicative of the whole "building the new society in the shell of the old" approach.

Just in the last 15 years or so, cannabis has gone from an entirely "black market" (illegal, period) product to legality in some states (for medical purposes, at least) with what appears to be a robust "gray" market -- legal but often traded through unofficial/unauthorized channels because official/authorized channels are vulnerable to red tape and foot-dragging by the politicians/bureaucrats and to attempts to exercise supervening force by the feds.

And as the plant steadily plods toward fully "legal" status (California will almost certainly get there in this decade, with other states racing it toward that finish line), those involved in the cannabis market are continuing to break new ground that benefits everyone else precisely because they have to operate both openly enough to get the job done but carefully enough to protect both consumers and providers.

Thus Headbook, a new social network for California medical marijuana patients.

It's not like Silk Road, a Tor-protected site for "black market" exchange of pharmaceuticals and such.

It's a publicly accessible site specifically for a product of changing / indeterminate / evolving legal status, which means its operators [see disclaimer about my relationship with them here] have to find ways to keep it "open" while at the same time protecting its users and their information.

The "open" part is demonstrable -- type the URL into any browser, and there you are at the site. No special software needed. No chasing down changing IP addresses. Anyone can surf over to Headbook any time.

The "protection" part is less visible, but it's there.

All connections to Headbook run through the https protocol rather than unencrypted http, and are encrypted with the AES algorithm at a key length of 256 bits. How secure is that? Well, it's what Wikileaks used for its "insurance" file a couple of years ago, and I haven't heard of that file being cracked yet.

On-site data is kept encrypted to what a company press release states is 1028 bits (algorithm not specified). It is, in fact, "military grade" -- a term I've seen a couple of people have a laugh over, but a factually correct term as those familiar with the old ITAR export restrictions on strong crypto will remember.

I am not a data security expert. I cannot personally guarantee that Headbook's data or transmissions are invulnerable to the kinds of attacks that can be mounted by, say, large government organizations. But they're obviously at least trying to secure their data and communications (a good thing) and publicly saying that that's what they're doing (an even better thing -- anyone who gives government spies the finger in public gets a +1 in my book).

Beyond all-transmission and whole-data encryption, there's a third layer of security in Headbook, in a section of the site called "The Vault."

The Vault is where medical marijuana patients and providers can get together to facilitate the movement of product into patients' hands and money into providers' wallets. This is obviously a much more sensitive area than the part of the site where users can post "it's always 4:20" or "free the weed" comments.

You don't get into The Vault without being vetted and established as an actual patient or legitimate provider. Headbook has contracted out the first layer of that vetting to a third party enterprise, has an MD on staff to examine any questionable claims, and includes an eBay-like "rating" system for additional crowd-sourced security.

Being neither a patient nor a provider, I haven't been through that vetting process or into The Vault.  And to be realistic, let's stipulate that if the feds want to mess with Headbook's users, they can probably fake up convincing "patient" or "provider" credentials that would last long enough to cause trouble before the rating system took them out of play. But the vetting/rating system will probably at least make large-scale sting ops more difficult.

The only security down side that I see here -- apart from the obvious, that being that the whole enterprise is operating in the light of day, but that's the whole point, right? -- is that Headbook's servers are located in the US. My advice would be for them to move those servers offshore, into some jurisdiction that's cannabis-friendly and/or US-government-unfriendly. That would help create some additional walls between the users and frivolous subpoenas and such.

All in all, though, I have to say that Headbook is an encouraging development on both the medical cannabis front and the counter-economic front. It's not "black market." It's barely even "gray market." It's "free market, in the state's face." That's very, very cool.

Disclaimer: I was invited by Steve Kubby to have a look at Headbook and write an article about it if I felt like it. I've known Steve for years. We're close friends. We've worked together on various political projects (and I have been paid for work on some of those projects). We share some business interests as well (I own a very small stake in his cannabis pharmaceuticals development firm), and I should probably assume that Headbook's fortunes may play a part in the fortunes of those other interests. I haven't asked him what his precise role in Headbook is, but presumably some kind of founder/owner status since he seems to be its public spokesperson. I am not being paid or otherwise compensated in any direct way for writing this piece, though, nor did I run it by him before posting it. By all means, take the article above with as much salt as you like. My own position on my bias is that I don't dig Headbook because Steve Kubby's behind it; rather I love Steve Kubby because he's always doing cool stuff like Headbook.

I Disagree, Judge Napolitano

Former judge Andrew Napolitano, writing today in Reason:

For the past few weeks, I have been writing in this column about the government's use of drones and challenging their constitutionality on Fox News Channel where I work. I once asked on air what Thomas Jefferson would have done if -- had drones existed at the time -- King George III had sent drones to peer inside the bedroom windows of Monticello. I suspect that Jefferson and his household would have trained their muskets on the drones and taken them down. I offer this historical anachronism as a hypothetical only, not as one who is urging the use of violence against the government.

Since he won't go past the hypothetical, I will:

I strongly urge anyone and everyone with the desire and wherewithal to do whatever it takes to make it impossible -- or at least hellaciously expensive -- to keep military or police drone aircraft in flight over any US city.

Given reports of e.g. Pakistani Taliban insurgents wiretapping drone video feeds, the Iranian military downing and capturing a drone without shooting it down, etc., I have to suspect that relatively simple (as such things go) solutions, utilizing off-the-shelf technology, are available and either already documented or awaiting discovery. I suspect Anonymous/LulzSec/AntiSec/whatever they're calling themselves lately can help out on the informational end.

Jam or spoof their signals. Lase or flare their optics. Heck, maybe even fly radio-controlled "toy" aircraft -- carrying payloads of black powder and ball-bearings, perhaps -- into them.

Whatever it takes.

This one should be a hard "do not cross or we will fuck you up" line.

Hmmm ... wait ... in my Zemanta "related articles" feed, I see that Napolitano himself has already said as much. Huzzah!
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Tuesday, June 05, 2012

If You Were in Doubt as to Where Obama Stands on "Intellectual Property"

Well, now you know:

President Barack Obama's re-election campaign is suing a website that sells T-shirts, bumper stickers and buttons with the campaign's signature "O" logo, claiming the store is infringing on its trademark.
In a lawsuit filed Friday in federal court in Washington, the committee says is illegally selling products with two of its logos.

In the old days (of, say, four years ago), almost any political campaign would have given its eye teeth to see outside actors pushing its campaign logo.  Ubiquity is a big part of that whole "winning elections" thing. You want people talking about you, displaying your distinguishing symbols, etc.

These days, though, campaigns really are morphing into the big businesses that people prone to support Obama complain they've always been:

[T]he campaign makes money from merchandise sales on its own website and doesn't get that money, which is considered a campaign contribution, when people buy the items on another site. The campaign also misses out on a chance to get the contact information of people buying the merchandise -- information that is used for future fundraising efforts.

Is it possible that Obama's the first president to look beyond his tenure in the White House in terms not of "legacy" but of "brand?"