There’s a Secret Patriot Act, Senator Says

By Spencer Ackerman

You think you understand how the Patriot Act allows the government to spy on its citizens. Sen. Ron Wyden says it’s worse than you know.

Congress is set to reauthorize three controversial provisions of the surveillance law as early as Thursday. Wyden (D-Oregon) says that powers they grant the government on their face, the government applies a far broader legal interpretation — an interpretation that the government has conveniently classified, so it cannot be publicly assessed or challenged. But one prominent Patriot-watcher asserts that the secret interpretation empowers the government to deploy ”dragnets” for massive amounts of information on private citizens; the government portrays its data-collection efforts much differently.

“We’re getting to a gap between what the public thinks the law says and what the American government secretly thinks the law says,” Wyden told Danger Room in an interview in his Senate office. “When you’ve got that kind of a gap, you’re going to have a problem on your hands.”

What exactly does Wyden mean by that? As a member of the intelligence committee, he laments that he can’t precisely explain without disclosing classified information. But one component of the Patriot Act in particular gives him immense pause: the so-called “business-records provision,” which empowers the FBI to get businesses, medical offices, banks and other organizations to turn over any “tangible things” it deems relevant to a security investigation.

“It is fair to say that the business-records provision is a part of the Patriot Act that I am extremely interested in reforming,” Wyden says. “I know a fair amount about how it’s interpreted, and I am going to keep pushing, as I have, to get more information about how the Patriot Act is being interpreted declassified. I think the public has a right to public debate about it.”

That’s why Wyden and his colleague Sen. Mark Udall offered an amendment on Tuesday to the Patriot Act reauthorization.

The amendment, first reported by Marcy Wheeler, blasts the administration for “secretly reinterpret[ing] public laws and statutes.” It would compel the Attorney General to “publicly disclose the United States Government’s official interpretation of the USA Patriot Act.” And, intriguingly, it refers to “intelligence-collection authorities” embedded in the Patriot Act that the administration briefed the Senate about in February.

Wyden says he “can’t answer” any specific questions about how the government thinks it can use the Patriot Act. That would risk revealing classified information — something Wyden considers an abuse of government secrecy. He believes the techniques themselves should stay secret, but the rationale for using their legal use under Patriot ought to be disclosed.

“I draw a sharp line between the secret interpretation of the law, which I believe is a growing problem, and protecting operations and methods in the intelligence area, which have to be protected,” he says.

Surveillance under the business-records provisions has recently spiked. The Justice Department’s official disclosure on its use of the Patriot Act, delivered to Congress in April, reported that the government asked the Foreign Intelligence Surveillance Court for approval to collect business records 96 times in 2010 — up from just 21 requests the year before. The court didn’t reject a single request. But it “modified” those requests 43 times, indicating to some Patriot-watchers that a broadening of the provision is underway.

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Doctors and dentists tell patients, “all your review are belong to us”

By Timothy B. Lee

When I walked into the offices of Dr. Ken Cirka, I was looking for cleaner teeth, not material for an Ars Technica story. I needed a new dentist, and Yelp says Dr. Cirka is one of the best in the Philadelphia area. The receptionist handed me a clipboard with forms to fill out. After the usual patient information form, there was a “mutual privacy agreement” that asked me to transfer ownership of any public commentary I might write in the future to Dr. Cirka. Surprised and a little outraged by this, I got into a lengthy discussion with Dr. Cirka’s office manager that ended in me refusing to sign and her showing me the door.

The agreement is based on a template supplied by an organization called Medical Justice, and similar agreements have been popping up in doctors’ offices across the country. And although Medical Justice and Dr. Cirka both claim otherwise, it seems pretty obvious that the agreements are designed to help medical professionals censor their patients’ reviews.

The legal experts we talked to said that the copyright provisions of these agreements are probably toothless. But the growing use of these agreements is still cause for concern. Patients who sign the agreements may engage in self-censorship in the erroneous belief that the agreements bar them from speaking out. And in any event, the fact that a doctor would try to gag his patients raises serious questions about his judgment.

As we dug into the story, we began to wonder if Medical Justice was taking advantage of medical professionals’ lack of sophistication about the law. Doctors and dentists are understandably worried about damage to their reputations from negative reviews, and medical privacy laws do make it tricky for them to respond when their work is unfairly maligned. Although Dr. Cirka declined repeated requests for an interview, his emailed statements (and the statements of his staff) suggest he doesn’t understand the terms of the agreement he asks his patients to sign.

In any event, we think censoring patients is the wrong way for doctors to deal with online criticism. Consumers understand that no business satisfies 100 percent of its customers, and the medical profession is no different. If a dentist is worried that negative reviews will harm his reputation, he should respond by providing more information about his practice to prospective patients, and by encouraging his satisfied patients to post positive reviews online. The revelation that he is trying to censor his patients’ reviews will do far more damage to his reputation than an occasional negative review ever could.

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2nd Excerpt from the Article

We can’t find any evidence that Medical Justice-style agreements have ever actually been used to censor online reviews. Dr. Cirka told Ars that he has never attempted to remove a fraudulent review using the copyright assignment policy. And Yelp told us that they “have never elected to remove a review in response this type of takedown request.” The experts we talked to said they’ve gotten similar statements from other review sites.

Courts are unlikely to find the agreement to be a valid transfer of copyright.

That’s probably because the agreement isn’t likely to hold up in court. Ars talked to Wendy Seltzer, a fellow at Princeton’s Center for Information Technology who founded the Chilling Effects clearinghouse for copyright takedown notices. She said a medical professional seeking to use the copyright assignment to censor a review would have at least two serious legal problems.

First, courts are unlikely to find the agreement to be a valid transfer of copyright. Blanket, prospective copyright assignments can be valid, but only in certain circumstances. For example, employees can assign any works created on the job to their employer. But online reviews don’t fit into any of the usual categories of “works made for hire,” and any doctor who claims her patients write reviews on her behalf is likely to be laughed out of court. Second, even if the assignment is valid, courts are likely to find that review sites are entitled to publish them under copyright’s fair use doctrine.

Yelp shares Seltzer’s assessment, telling Ars that “there are any number of reasons to believe the agreements don’t hold water as a legal matter.” Yelp spokeswoman Stephanie Ichinose signaled a readiness to fight these agreements, which she says “put the needs of doctors ahead of a patient community that has surprisingly few places to turn for helpful information about the medical profession.”

“We are happy to support a patient’s right to free speech,” Ichinose said.

Seltzer told Ars that a dentist who tried to remove the review of someone who hadn’t signed the agreement would face particularly severe problems in court. Under the “notice and takedown” procedure spelled out in the Digital Millennium Copyright Act, the person seeking to have material removed must certify, under penalty of perjury, that he holds the relevant copyrights. But if the author of a review never signed an agreement, then a doctor’s claims to hold the copyrights would be a blatant lie, and he would face penalties under the DMCA.

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Google Reveals Chinese Espionage Efforts

Exit strategy? Flowers are seen placed in front of the headquarters of Google’s offices in Beijing.   Credit: AP Images

After an attack that required staggering skill and resources, the company threatens to quit China.

By Erica Naone

Google’s threat to withdraw its operation from China has shed more light on a remarkably sophisticated computerized espionage network originating from the country, experts say.

Last night Google announced that it would no longer participate in government censorship of the Chinese version of its site,, and threatened to shut down its operations in China altogether. In a blog post, David Drummond, senior vice president of corporate development and chief legal officer at Google, wrote that the decision was taken in response to a series of Internet attacks against Google and other companies, as well as covert Internet surveillance of human-rights activists.

Though Google has not disclosed the exact nature of the attacks, Drummond wrote: “In mid-December, we detected a highly sophisticated and targeted attack on our corporate infrastructure originating from China that resulted in the theft of intellectual property from Google.” He added that the company has gathered evidence that 20 other large Internet, finance, technology, media, and chemical companies were also attacked.

In Google’s case, the attackers tried to get into Gmail accounts belonging to Chinese human-rights activists, Drummond said. The company believes that the efforts were not successful, but that hackers have been targeting human-rights activists based in other parts of the world through a range of hacking techniques.

Amichai Shulman, CTO of Imperva, a data-security company based in Redwood Shores, CA, says Google probably called the attack “highly sophisticated” because the hackers got into the heart of its database and password list. “The intellect and resources required to pull off such a surgical attack are staggering considering the defenses Google has put in place to protect digital assets,” he says.

The hackers probably used “social engineering” techniques to breach Google’s defenses, suggests Nart Villeneuve, chief research officer for the Canadian company SecDev.cyber, and the director of operations for a censorship circumvention tool called Psiphon.

In March 2009 Villeneuve uncovered “GhostNet,” a cyber-spying operation originating in China that was said to have targeted the Dalai Lama and other human-rights activists. Though Villeneuve has no direct knowledge of the attacks discovered by Google, he says it’s likely that they match the methods he has been monitoring.

Villeneuve says the hackers he has studied start by sending users within a target network system a carefully crafted e-mail full of personal information. This isn’t the same as a spam message, he says–instead it’s “someone crafting an attack.” The attacker will attach a PDF or Word document loaded with malware that compromises the user’s computer when it’s opened. Users can protect themselves to some extent with antivirus software, but Villeneuve says that such programs only identified about six out of 41 of the infected documents he has checked. Once a PC has been infected, the attacker can command it remotely.

Once the attackers control one computer on a network, they branch out from there, probing other computers on the same network and raiding e-mail accounts to get more ammunition for social engineering attacks. “They’re basically tricking users into exploiting themselves,” Villeneuve says, adding that perimeter defenses are useless if attackers can trick humans into handing over information or infecting themselves.

However, since many hacking groups operate using these tactics, Villeneuve says it can be devilishly hard to trace attacks back to their source. “We often don’t know [the exact details of attackers’] relationship with the Chinese government,” he says. Still, Villeneuve believes that the Chinese government would certainly stand to benefit from the activity.

Ross Anderson, a professor of security engineering at the University of Cambridge, agrees that “the sort of tricks” used against the Tibetan movement likely provide clues to the recent attacks against Google and other companies.

Shortly after Google made its announcement, Adobe posted an announcement of a “computer security incident involving a sophisticated, coordinated attack against corporate network systems managed by Adobe and other companies.” Adobe says it learned of the attack on January 2 but did not confirm that this attack was the same as the one that struck Google.

Google plans to negotiate with the Chinese government over the next few weeks to see if it is possible to run a standard version of its search engine in China. “These attacks and the surveillance they have uncovered–combined with the attempts over the past year to further limit free speech on the Web–have led us to conclude that we should review the feasibility of our business operations in China,” Drummond wrote.

No other major U.S. search engine has so far said it would change its operations in China. A Yahoo spokesperson said in a statement, “We stand aligned with Google that these kinds of attacks are deeply disturbing and strongly believe that the violation of user privacy is something that we as Internet pioneers must all oppose.” But the search engine was silent on the question of whether it would make any changes to its own policies. A Microsoft statement read, “We have no indication that any of our mail properties have been compromised.”

(Creating Jobs – One Way) – Repeal The Minimum Wage

artcarden_170x170Art Carden

It wastes resources and hurts the poor.

In July, the federal minimum wage rose from $6.55 per hour to $7.25 per hour. Before it went into effect, the Shelby County Commission in Tennessee passed an ordinance requiring firms that contract with the county to pay a “living wage.” Similar ordinances are in place around the country.

But these laws actually eliminate opportunities for low-skill workers and waste resources. They also couldn’t have come at a worse time: The last thing people on the margins of the labor market need are laws that will make them more difficult to employ. With unemployment hovering near 10%, perhaps now is a good time to consider repealing the minimum wage.

This is a standard application of basic economic principles. Demand curves slope downward, which means that people wish to buy more of something as it gets cheaper and less of something as it gets more expensive. Supply curves slope upward, meaning people are willing to do more of something as the rewards increase and less of something as the rewards decrease. In competitive markets, minimum wages create unemployment: While they draw more people into the labor market, they reduce the amount of labor companies wish to hire.

In the complex American labor market, these effects may be difficult to identify, but a comprehensive survey research on minimum wages by David Neumark and William Wascher finds that minimum wages do, in fact, reduce employment. As Neumark argues in a Wall Street Journalarticle, the best estimates suggest that this past summer’s minimum wage increase will likely destroy approximately 300,000 jobs that would otherwise be filled by teenagers and young adults. For example, summer camps cut back on hiring in response to the weakening economy but also in response to the coming increase in the price of labor.

Even if a higher minimum wage doesn’t manifest itself in lost jobs as such, it will lead to fewer hours, reduced benefits or both. Some workers who would have received paid training won’t. Employee discounts and other perks might fall. Some jobs that would have been created in the absence of a higher minimum wage won’t be–self-checkout scanners at grocery stores are in part a response to higher labor costs–and there are many margins on which employers can adjust compensation without necessarily firing people.

There are other ways in which a minimum wage is a raw deal for low-skill workers. One is its effect on experience in the labor market and, therefore, future earnings. Since having a job is one of the most important ways to acquire valuable skills, today’s minimum wage-induced unemployment translates into tomorrow’s reduced earnings.

Under-employment among young black males and low earnings among older black males are perennial problems explained in part by the minimum wage. Minimum wages and other regulations on the labor market lock a lot of younger black males out of the labor market, which means they do not acquire as many skills as they would if they were employed. When they are older, therefore, they earn less. In the 1960s, Milton Friedman said that the minimum wage is a crime against black Americans.

There is some evidence that this is the case in the most recent Employment Situation Summary released by the Bureau of Labor Statistics. The change in the unemployment rate for all workers between July and August was 0.3 percentage points (from 9.4% to 9.7%) while the change in the unemployment rate for “Black or African American” workers was double that–0.6 points (from 14.5% to 15.1%).

For workers classified as “Hispanic or Latino Ethnicity,” there was a 0.7 percentage point increase in the unemployment rate (from 12.3% to 13%). Between August and September, the Hispanic/Latino unemployment rate recovered slightly, while the unemployment rate for black workers increased again, from 15.1% to 15.4%. Workers in these categories might be disproportionately affected by the economic downturn, but they are also disproportionately affected by the minimum wage increase.

Minimum wages also feature a particularly cruel irony. Some proponents of the minimum wage argue that even if employment does fall, it is still a good policy because it might lead to a net increase in employees’ incomes. This appears to be true at first, but the expected gains from the higher minimum wage–plus part of what workers were previously taking home–will evaporate as workers jockey with one another to obtain the resource transfers promised by the minimum wage.

The minimum wage drives a wedge between the marginal value of an hour of labor and its marginal cost. This provides incentives for people to waste resources trying to appropriate the transfer–by paying lobbyists, for instance–or through more innocuous channels, like waiting in line at the employment office. No new value is created, a lot of value is destroyed and the workers we are trying to help are worse off as a result.

But the minimum wage controversy speaks to a larger issue. The market process reveals the marginal value of a given hour of labor, but supporters of minimum wages assume that the impersonal market process is somehow capable of committing injustices. This is a line of thinking that is centuries out of date. In Medieval times, markets were hampered by the “just price” doctrine, which basically held that, in any transaction, there was a morally correct price and other prices that were morally incorrect. There was no compelling theory for why some prices were morally correct and some were not; further, there was nothing to ensure that the mechanism by which these prices were determined was legitimate. In the same way, can we reasonably expect to identify those who are blessed with sufficient moral insight as to be able to determine which wages are “just” and which wages are “unjust”?

Unfortunately, this is a point that has to be made over and over again. No matter how they are packaged, restrictions on how labor markets operate ultimately destroy wealth and hurt poor workers. If Neumark’s estimate is accurate, then as a result of a minimum wage increase, about 300,000 people will be denied the opportunity to acquire the skills they need to succeed later in life.

Art Carden is an assistant professor of economics and business at Rhodes College in Memphis, Tenn., and an adjunct fellow with the Oakland, Calif.-based Independent Institute. He is a regular contributor to, and Division of Labour.