Thank you for the lovely birthday wishes yesterday, everyone! It cracks me up that most of them showed up on Facebook, since that's the social networking service I use the least, but really I'm quite delighted by all the greetings and nifty links people sent.

I thought pretty seriously about going up to Holland yesterday, since I share a birthday with the former Queen Juliana and thus it is a national holiday. However, if I had decided to stay late into the night it would have been hard to find a hotel, so I spent the day in Leuven instead. I picked up some new SD cards for my phone and some other gadgets, and checked out some handheld video cameras, since I have a couple of video projects in mind and the camera on my phone is not that great. After that, I went to the Oude Markt, where I ran into a bunch of friends and enjoyed lots and lots of free beer. Around 11 it was getting kind of chilly, though, so I went home, had some food, and promptly zonked out.

Now I am awake, with no hangover even, and I have a hankering for ribs, so D and I are going to go find some. Mmm, ribs.

Tomorrow I fly to Orlando for a week of meetings for work. Who all lives in Florida these days? I have no sense of FL geography and will not have a car, but if anyone's up for hangouts, let's figure something out.

OK, ribs now!

This probably makes more sense if you've already seen the previous Keynes/Hayek Rap Battle. Go check it out, I'll wait.

Now, please enjoy the lyrical stylings of Billy Scafuri and Adam Lustick, featuring Richard J. Murphy:



Obviously I am backing Team Spontaneous Order; Freddie wuz robbed! I'm not sure how well these videos actually communicate the dispute between top-down Keynesian economics and bottom-up Austrian economics versus how much ends up being clever in-jokes for econ nerds, but it is worth pointing out that the EconStories team, who produced both rap battles, also have a series of videos that present both philosophies with more detail and less music. Alas, each of these has gotten at most a tenth one lousy percent of the views of "Fear the Boom and Bust". Do please go show them some love -- I think you'll find their work both entertaining and informative.

After that last post, some of you may be thinking "But, Meredith, I don't think I've ever heard you talk about transhumanism before outside of the context of Vernor Vinge's novels. Are you an extropian, too? What's up with this futurism stuff?"

I used to have a lot of extropians in my social circle, and through conversations with them I arrived at a position that I jokingly referred to as "weak anthropic extropianism". Simply put, it is my opinion that while the chances of my surviving to an advanced age are quite high, and our understanding of biology, genetics and aging is advancing so fast that younger generations -- possibly even people who are alive now -- may in fact be able to extend their lives indefinitely, the question of whether I as an almost-34-year-old Western woman will have that option is already settled. Either I was born late enough to take advantage of the fruits of research into Not Dying, or I will die before this option becomes available to me. Realistically, it's probably the latter, and so I live every day with a subtle awareness of my own mortality. It's an interesting motivator: some day, you will die, and there's a lot you want to accomplish before that happens, so hop to it! Thinking about time and effort as finite resources also helps me to recognise sunk-cost fallacies, which is a nice cognitive benefit. All in all, it may not be optimistic, but at least it's adaptive.

Support for the weak anthropic extropian position comes from a variety of directions. These graphs of how cancer survival rates have improved over a period of 43 years show how dramatically and consistently the evidence-based approach with which we investigate disease has produced results in the form of living, cancer-free human beings. "Personalised medicine" is starting to become a reality; already, millions of patients are treated for rheumatoid arthritis or Crohn's disease with monoclonal antibodies, designed to inhibit an immune-system protein which their bodies have problems with. Monoclonal vaccines and other anti-infectives -- proteins tailored to knock out specific viruses -- are on the market already. Customised therapies are a pretty short bridge from there. It'll start with some weird fucking disease, probably an autoimmune disorder because that's where the Westerners are when you draw your map by morbidities, though I wouldn't be at all surprised if AIDS research heads in the direction of tailoring different therapies to different strains of the virus -- and then, armed with the discoveries in genetics (and more importantly, genetic engineering) from that endeavour, tailoring them to patients as well.

Put another way, I think we're going to find out whether it's possible for there to be a non-physically-aging Homo sapiens pretty soon now, whatever the answer actually ends up being.

But, you know, an awful lot of alchemists probably said "I think we're going to find out whether it's possible to transmute lead into gold pretty soon now, whatever the answer actually ends up being" not too long before the discipline of alchemy underwent a phase transition into the discipline of chemistry (with significant help, I might add, from the disciplines of brewing and, I shit you not, accounting. The taxation of alcohol plays an enormous role in the history of chemical engineering.) The good parts of alchemy (a lot of the equipment that was developed, and a lot of practical knowledge about things like melting and boiling points, as well as ways of keeping records of experimentation) provided a springboard for the development of a far more accurate and predictive model of the properties of natural (and, later, unnatural) substances. So even if the answer really is "no, aging is inescapable," we're going to learn -- have already learned -- a hell of a lot about how the human body works, and how it can break, and how to fix it when it breaks, and that's the kind of knowledge that can be employed to help make sure that billions of mortal human beings experience a healthier and more enjoyable ephemeral, all-too-short existence.

This position is inherently futurist, though not as dramatically so as strains of futurism that focus on climactic achievements of great technological depth. An imagined future where some people never age is the stuff of science fiction; same for one where brain-computer interfaces exist. The goals that I as a weak anthropic futurist am interested in accomplishing are ones of great scope. How can we wipe out nutrient deficiency diseases in the developing world (and among the poor in the developed world)? How can we dramatically reduce the attack surfaces of network protocols? These are things that affect people right now, and they're problems I happen to be interested in solving and think I stand a reasonably good chance at being able to affect in a positive way. So that's why I don't make an effort to hang out with the H+ crowd. I think they're great folks, I drink beer with them at conferences, I love what they're doing, I'm just working on different stuff. Your brain-computer interface is going to need protocol implementations that don't have parser vulnerabilities, for crying out loud, so Imma make sure you guys have the tools to do that, particularly since it helps out the Internet we already have.

Human health (and network health) are big problems. Billions of people, billions of computers. And one thing we've learned in the last several decades is that large-scale systems are a field of study in themselves. Sometimes people try to build predictive models of large-scale systems, and usually, when they fuck it up amazingly, everyone knows that something got amazingly fucked up (cf. the failure of predictive models that led directly to the credit crisis) even if they don't know which model failed. I don't think we really notice when predictive models -- like the one at the power plant that feeds your city, which predicts how much demand to expect and takes generating capacity on- and off-line to avoid waste or damage -- succeed. Large-scale engineering works; the very existence of the Internet provides all kind of fascinating case studies. I think we will derive tremendous increases of human health and happiness from better understanding of how these sorts of systems do -- or don't -- expand or contract, thrive or perish, succeed or fail as platforms for whatever we try to launch from them. Evgeny Morozov, for instance, levies a lot of criticism at "techno-utopians" who advocate spreading freedom through spreading free speech online, and Malcolm Gladwell derides "Facebook activists"; both are often perceived as gadflies, but they provide a vital service, looking for feedback that shows whether a certain large-scale behaviour produces a desired outcome or not. (Gladwell less so than Morozov, as Gladwell's target is really a strawman.) So I suppose you could say that if I'm a futurist, then my futurism is directed toward problems of scale with regard to health and information processing.

Or I could just say "yeah, I think it'd be really awesome if everyone never got sick and always had safe, reliable ways to communicate and access information from anywhere in the world, and I think we can achieve these things, so let's hurry up and make it happen already!" That probably sounds more mainstream-futurist.

Matt Bell remarks about the blind spot that many futurists exhibit with respect to the organisational and effort-leveraging capabilities of the religious, whom those futurists regard as "too dumb or narrow-minded to understand futurist concepts like the Singularity."

I don't think this class of blind spot is necessarily limited to futurists; many people who are experts in some area develop the belief that everyone else is too dumb or narrow-minded to understand their area of expertise. Lawyers, for instance, or accountants, or auto mechanics, or really anyone whose income relies on maintaining and being able to use a specialised body of knowledge.

When I reflect on this, I find that I have the impression that the people who are most prone to this belief are self-taught or mostly so. This surprises me, because I'd expect autodidacts to be more appreciative of people's ability to learn outside of an established pedagogical system!

But assuming that my impression is correct, which it may very well not be, I can see a few reasons why it might be the case. One is that autodidactic learning is highly specialised to the learner, and the learning methods that work for person X might not work as well for person Y. But if X's only experience with learning a field or skill is idiosyncratic(1), X may have a difficult time communicating to Y about how to learn in this area. "It worked for me! If it doesn't work for you then I guess you're just too dumb to get your head around it." Which is facially untrue; as you point out, it's X's own blind spot with respect to pedagogy that leads X to this conclusion. Futurism, insofar as it is a discipline at all, is a discipline of autodidacts; it's knitted together from so many different fields that while an individual may be a pedagogically trained expert in one area, such as computer science or biology, getting a full understanding of the class of problems that futurists want to solve requires self-driven learning.

I've noticed that people who do hands-on work, like plumbing or car repair, are often better at communicating not only the "what"s but also the "why"s and "how"s of their knowledge. Again, I can see a few factors that contribute to this. A system like an engine may be quite complicated, but the process of diagnosing and repairing a single problem (say, cylinder not firing) can be used as a jumping-off point to illustrate how the entire system works as a whole (viewed through the lens of how the performance of the car is negatively affected). Do this enough times with enough problems, and you've successfully trained a new auto mechanic, because your student has gained the hands-on experience to recognize problems and understand what components of the system are responsible for those problems, in what ways. Futurism is also a problem-solving discipline; the problems it seeks to answer are mainly of the form "There isn't enough X in the world" (where X = years of life available to each human, strong AI, space travel, whatever). It's easy to get someone to understand why you would want to be able to fix a car; getting someone to understand why you would want to fix an existential problem might first require getting them to understand that the problem is a problem in the first place, but if you can communicate that, then communicating what you want to do about it becomes purposeful. I wonder how often the "dumb, narrow-minded" opinion gets formed because a specialist was trying to explain a solution to something which the hearer hadn't considered as a problem? It's hard to stay interested in evaluating a solution if one hasn't explored the problem space oneself at least a little bit, and even harder to make a meaningful evaluation!

It occurs to me that there are two religious groups which use this mentor/apprentice model to great effect: the Mormons and the Jehovah's Witnesses. Both send out missionaries, door-to-door, to engage people in conversations about problems. If a missionary concludes that the person doesn't consider the topic to be a problem and that s/he can't convince the person that it is ("no, I'm not concerned about my immortal soul because I don't have one, have a nice day"), s/he can move on quickly. The goal, however, is to find people who are receptive to the notion of the problem, spend some time assessing them through conversation, then get them to commit to meeting up again (perhaps after reading some literature) to talk further so that the missionary can present their (or, rather, their church's) solution. They're not just spreading memes, they're incubating them.

Now, I personally find door-to-door missionaries an annoying interruption and I think I would be pretty irritated if a transhumanist showed up on my doorstep to offer me a tract and asked "Have you ever thought about whether you could live forever?" But, again taking a cue from Christianity, I think the idea of "witnessing" to people about futurist ideas -- in the sense of getting them intrigued and excited -- in a casual setting, like Matt's airport conversation, has a lot of power. Much ink has been spilled on the subject of doing this from a religious angle; again, there's a lot more organisation there than many people may give religious groups credit for ;)

(1) I totally almost typed "idiosocratic" there.

I feel like the Austrian economist Friedrich Hayek gets a bad rap from today's liberals and progressives, mainly because his support of free markets (particularly free global markets) made him the darling of Republicans from the beginning and especially the Reagan administration. I recently re-read his essay "Why I am Not A Conservative", which along with his famous The Road to Serfdom is what made me fall in love with him in the first place. Reading them, I came to realise that Hayek's principles place two values at the top: liberty and evidence-based reasoning. Reality is his ultimate arbiter, the scientific method his methodology, and maximising individual freedom his foremost goal. His support of free markets comes from a long, hard study of different societies, their economies, and the freedoms their citizens enjoy. He's not talking about the keep-the-poor-in-their-place "not with my tax dollars!" take on freedom that many tea-partiers espouse, either, as these quotes from The Road to Serfdom show:

There is no reason why, in a society which has reached the general level of wealth ours has, the first kind of security should not be guaranteed to all without endangering general freedom; that is: some minimum of food, shelter and clothing, sufficient to preserve health. Nor is there any reason why the state should not help to organize a comprehensive system of social insurance in providing for those common hazards of life against which few can make adequate provision.

The preservation of competition [is not] incompatible with an extensive system of social services -- so long as the organization of those services is not designed in such a way as to make competition ineffective over wide fields.

I wanted to tweet a bunch of Hayek quotes, but he doesn't condense well. So that's what blogs are for. Imma let him finish, with the following choice bits from "Why I Am Not A Conservative". (Where he says "liberal" you may wish to read "libertarian", though that is not the term he would have used.)

On science, spirituality, and morality:

Though the liberal certainly does not regard all change as progress, he does regard the advance of knowledge as one of the chief aims of human effort and expects from it the gradual solution of such problems and difficulties as we can hope to solve. Without preferring the new merely because it is new, the liberal is aware that it is of the essence of human achievement that it produces something new; and he is prepared to come to terms with new knowledge, whether he likes its immediate effects or not.

I can have little patience with those who oppose, for instance, the theory of evolution or what are called "mechanistic" explanations of the phenomena of life because of certain moral consequences which at first seem to follow from these theories, and still less with those who regard it as irrelevant or impious to ask certain questions at all. By refusing to face the facts, the conservative only weakens his own position.

Should our moral beliefs really prove to be dependent on factual assumptions shown to be incorrect, it would hardly be moral to defend them by refusing to acknowledge facts.

What distinguishes the liberal from the conservative here is that, however profound his own spiritual beliefs, he will never regard himself as entitled to impose them on others and that for him the spiritual and the temporal are different sphere which ought not to be confused.

On diversity and tolerance:

When I say that the conservative lacks principles, I do not mean to suggest that he lacks moral conviction. The typical conservative is indeed usually a man of very strong moral convictions. What I mean is that he has no political principles which enable him to work with people whose moral values differ from his own for a political order in which both can obey their convictions. It is the recognition of such principles that permits the coexistence of different sets of values that makes it possible to build a peaceful society with a minimum of force. The acceptance of such principles means that we agree to tolerate much that we dislike.

I have little doubt that some of my conservative friends will be shocked by what they will regard as "concessions" to modern views that I have made in Part III of this book. But, though I may dislike some of the measures concerned as much as they do and might vote against them, I know of no general principles to which I could appeal to persuade those of a different view that those measures are not permissible in the general kind of society which we both desire.

[T]he most conspicuous attribute of liberalism that distinguishes it as much from conservatism as from socialism is the view that moral beliefs concerning matters of conduct which do not directly interfere with the protected sphere of other persons do not justify coercion.

[T]he more a person dislikes the strange and thinks his own ways superior, the more he tends to regard it as his mission to "civilize" other - not by the voluntary and unhampered intercourse which the liberal favors, but by bringing them the blessings of efficient government.

[T]he fact that I prefer and feel reverence for some of the traditions of my society need not be the cause of hostility to what is strange and different.

On institutionalised power, coercion, and privilege (in 1960, guys!):

While the conservative inclines to defend a particular established hierarchy and wishes authority to protect the status of those whom he values, the liberal feels that no respect for established values can justify the resort to privilege or monopoly or any other coercive power of the state in order to shelter such people against the forces of economic change.

On why you should choose your allies carefully:

This difference between liberalism and conservatism must not be obscured by the fact that in the United States it is still possible to defend individual liberty by defending long-established institutions. To the liberal they are valuable not mainly because they are long established or because they are American but because they correspond to the ideals which he cherishes.

On conservatives' resistance to change versus liberals' readiness to adapt to change:

[Conservatism] by its very nature cannot offer an alternative to the direction in which we are moving. It may succeed by its resistance to current tendencies in slowing down undesirable developments, but, since it does not indicate another direction, it cannot prevent their continuance. It has, for this reason, invariably been the fate of conservatism to be dragged along a path not of its own choosing. The tug of war between conservatives and progressives can only affect the speed, not the direction, of contemporary developments. [....] What the liberal must ask, first of all, is not how fast or how far we should move, but where we should move.

The admiration of the conservatives for free growth generally applies only to the past. They typically lack the courage to welcome the same undesigned change from which new tools of human endeavors will emerge.

(Particularly relevant to the emergence of free/open-source software, neh? And along the same lines:)

[O]ne of the fundamental traits of the conservative attitude is a fear of change, a timid distrust of the new as such, while the liberal position is based on courage and confidence, on a preparedness to let change run its course even if we cannot predict where it will lead.

You might or might not be familiar with the blog Slacktivist, perhaps best known for its ongoing exegesis of the wretched theology and even worse writing in the Left Behind novels. The blog ran for years on typepad.com, and recently its author, Fred Clark, moved it to the Patheos portal in the interest of engaging with the broader ecumenical/interfaith¹ community.

During its time at TypePad, the blog developed a diverse community of commenters and a set of social mores that made it a much-needed safe space for many of those participants. In the move to Patheos, many of those norms turned out to be alien to new readers, which prompted the sort of flamewars you'd expect, plenty of 101 discussions with the usual attendant grumbling, and an interesting deconstruction of the hidden assumptions bundled up in the tone argument:

Certainly there is a place for attempting to persuade bigots and the callous that they are wrong. This is valuable work, and probably not achieved well by nuking. You catch more flies with honey and all that.

However, when all responses to bigotry are polite and civil, that sends two messages. It tells the bigot that their opinion is within the range of acceptable opinions for polite disagreement, and it tells the victims of bigotry that their basic humanity is open to debate, which in turn tells them that everyone, not just the bigot, agrees that their humanity is questionable.

I'm metaphorically kicking myself for not having noticed this independently. While I've generally had more success persuading individuals with reasoned discourse than with the Flamethrower of Justice, I'm now pondering instances where I could have busted out the flamethrower but didn't and might have thereby shored up a racist/sexist/homophobe's unexamined belief that there was room for his/her bigotry in civil society.

In the couple of years that I've been mostly lurking in various anti-prejudice communities, I've noticed that allies -- and I include myself in that group -- tend to be rather incrementalist in our approach to bigots. The attitude seems to be that we can eradicate prejudice through a combination of reason and stealth: that by guiding a bigot through the process of examining his/her assumptions with the lens of Discourse With Someone They Identify With More Than Those Other Guys, we can expose those assumptions as faulty. Part of the popularity of this approach is that it works, at least to the extent that the other member of the dialogue is interested in that sort of self-examination.

Where it breaks down, though, is the extent. Bigotry isn't rational, and the vast majority of people don't establish their beliefs by sitting down with graph paper and a mechanical pencil to work out an internally consistent set of principles. We're social animals, and our social norms are fluid, influenced by the words and actions of whatever group we happen to be interacting with. If you're hanging out with a group composed entirely of white people and someone busts out a racist joke, it's not easy to stand up and say "That's not okay -- not even here." But it's the right thing to do, and in the long run it's the only thing that will provoke a shift in social norms. Bigots get away with being bigots because they don't expect to draw opprobrium for doing or saying something bigoted. Contrapositively, allies often do expect to be mocked or criticized for lighting up a bigot, and too often keep our mouths shut when we ought to be doing our part to push bigotry out of the realm of acceptable behaviour.

Or, taking a less charitable view of human nature: Small-minded people don't give a shit about reason, but they sure do care what other people think of them.

I don't like the idea of shaming people into behaving in a civilised fashion, but as any member of a minority knows, shame is a mighty powerful weapon. It's also one that bigots have been using, quite effectively I might add, approximately as long as bigotry has existed. There's a scene in the movie Milk where Harvey Milk tells his supporters that if they want to change anything, they're going to have to out themselves. Now, this isn't some sort of Kantian categorical imperative, and we can discuss why in the comments if anyone cares to -- but Harvey's point, with that particular set of people at that particular time in history, was that the community was allowing bigots to trample it because the members were afraid of being shamed for their sexual orientation. Imagine, if you will, a society where holding the belief that gay people shouldn't marry each other or that rape jokes are okay or that black people's experiences don't matter was considered so benighted that people who actually held such beliefs were powerless to act on them out of fear of rejection. I don't consider such a society ideal, but it sure would be a damn sight better for PoCs et al than what we have right now.

In other words, allies, we need to step up the game when it comes to outing ourselves. At the end of the day, reason and attrition will still be the mechanisms that eradicate the virus of bigotry from our society -- but, just to beat the metaphor to death, we need to quarantine the virus in order to give the antivirals time to work.

¹I can't think of a good adjective in the same vein that also includes atheists, but for what it's worth, the site also features atheist writers and there's a humanism portal on the way.

Something that's been annoying me on Twitter lately is the cries of horror and outrage that 200,000 people have been evacuated from the area around the Fukushima Daiichi nuclear reactors and that iodine tablets have been distributed. This isn't something I can address effectively in 140-character splurts, so I'll talk about it here.

These complaints seem to assume that if people are being evacuated and given medical supplies, then something awful must have already happened and that the measures being taken are remediative. I have to conclude that none of these people have ever lived in an area prone to extreme geological/meteorological events. I've lived in several, which means that I have been through tornado warnings, flood warnings, hurricane warnings, and snow warnings. One common theme of all these events is that they all feature preventative measures: when it looks like there might be a flood, you start sandbagging the riverbank, when it looks like there might be a tornado you go down to the basement, when it looks like there might be heavy snow affecting travel safety you close schools. You take these measures so that if something bad does happen, you will be in the safest place possible.

In the case of a nuclear accident, preventative measures run many layers deep. Measures such as evacuation and distribution of iodine take place very early in that chain: once the chance of a containment breach N hours in the future is X%, you evacuate the surrounding area and hand out medical supplies so that anyone who needs them already has them on hand. The last fucking thing you want to be doing during a containment breach is worrying about people getting exposed, or having to put more people into a hot area in order to evacuate others, so you get everyone in a wide radius around the reactor out of harm's way very early on. This is particularly important in the case of a massive geographical disaster: you have to factor in travel delays due to damage to the transportation infrastructure, so you have to tell people to get the fuck out even earlier in order to give them plenty of time to get to safety.

Happily, it looks like all the reactor cores have been successfully cooled down. Some of the Fukushima Daiichi reactors had to be cooled with seawater due to boil-off; they had to vent some steam to reduce the pressure in the reactor, which lowered the coolant level, and they replaced it with seawater with lots of boron dissolved in it. (Boron acts like flypaper for neutrons, capturing them and preventing further fission reactions.) If they had to flood the pressure vessel, then the reactor is probably a write-off. This is why you've heard people talking about boron/seawater being the "last resort" option; it is guaranteed to kill off any ongoing primary or intermediate fission interactions, but it also ruins the reactor for future use. Think of it as like spraying a kitchen fire with a fire extinguisher: you've put the fire out, but you'll have to throw out the food you had to hose down.

The Fukushima Daiichi reactors are all roughly 40 years old. In that intervening time, boiling-water reactor designs have improved substantially. GE Hitachi's Advanced Boiling Water Reactors (ABWRs) and Economic Simplified Boiling Water Reactors (ESBWRs) don't suffer from the need for active pumping that caused much of the trouble with Daiichi 1 and 3 (which are also GE Hitachi designs, but from an earlier generation). Two ABWRs are slated to go online at Fukushima Daiichi in 2016; it would be great if the damaged reactors could be replaced with ABWRs or even ESBWRs.

Finally, I just have to give a shout-out to the engineers who built this plant in the first place. For the most part, that plant successfully survived an earthquake seven times stronger than what they designed it for. That's some good construction work. It looks like a substantial amount of the problems that happened after the coolant system failure, such as problems connecting the second set of backup batteries and generators that were trucked in, could have been prevented by standardization that's only developed in the last 40 years; when your plants are standardized, it's much easier to make sure you're getting the right parts to the right place. I hope that Japan takes advantage of the improvements in design and advances in engineering standards that have taken place since Fukushima Daiichi went online, and gets the site back up and running better than it was before.

(SCENE: the living room. enochsmiles is annoying the cat, following best engineering practices.)

enochsmiles: He's such a cuddlesome beast!

(enochsmiles puts the cat on maradydd's shoulders and continues to snuggle him.)

maradydd: Will no one rid me of this cuddlesome beast?

enochsmiles: He's not the Archbishop of Catterbury!

So this Ukrainian dude I follow on Twitter posted a link to this diplomatic cable from Kyrgyzstan, which has all kinds of goofy looking line noise in it. In fact, even the file name is jacked up -- it should be BISHKEK, not BISHIEK, which makes me think of some town in the frozen steppes whose sole export is yaoi manga.

Just for grins, I redacted the first three paragraphs as best I could (some names are really mangled, so I left them that way) and noticed a funny pattern in the offsets of the variant characters: most of them are powers of 2.

The tinfoil-hat explanation is that this pattern is some kind of steganography. I think it's more likely that it was some kind of copying or transmission error, though I'm not sure what sort of error would exhibit this kind of patterned data corruption. The distribution of borked characters by offset in the string looks fairly random, but then again I haven't graphed it or anything. Anyone got any clever ideas?

( Lots of numbers, cut to save your screen )

By now you've all probably heard about the court order that the U.S. Department of Justice served on Twitter last December, and which Twitter successfully fought to have unsealed so that it could notify the affected subscribers — among whom are Dutch entrepreneur and privacy activist Rop Gonggrijp, Icelandic parliament member Birgitta Jonsdottir, and Tor Project evangelist Jacob Appelbaum. There is a good deal of FUD going around about what has actually been requested, and this time I'm not going to debunk it myself, as Christopher Soghoian has already done so admirably in the article linked in the previous sentence.

Instead, I'm going to tell you about my own experiences in the land of 18 USC § 2701 et seq, sometimes referred to as the Stored Communications Act portion of the Electronic Communications Privacy Act — and how they're directly analogous to the ECPA and Fourth Amendment issues raised in the matter of the Twitter court order. Oh, and also how we won. I hope that they prove instructive.

In February 2009, my website and email were hosted on monkeyblade.net, a machine coloed and run by John "warthog9" Hawley, who's also the sysadmin of kernel.org. I knew John from my grad school days at the University of Iowa, where he was an undergrad; he also hosted sites for a few other folks from the university ACM chapter. At that point he'd been hosting me since mid-2004.

That situation quickly changed, however, when John discovered that I was embroiled in a legal issue with the California Army National Guard, and had opted to conduct my defense from my residence in Belgium rather than go to court in the U.S. with a legal team that had admitted to me that it was unprepared to defend me adequately. In light of some remarks John made on LiveJournal about my situation, I decided it was time to find alternate hosting options. I backed up my mail and site, made arrangements to transfer my domain and data to another machine (the excellent snugharbor.com, run by our own lwood ), and began the tedious process of /usr/bin/shred'ing those files of mine still on John's box, as one does when one is vacating a machine.

I found myself locked out of my account on monkeyblade.net shortly thereafter, and on February 11th I received an email from John with an attachment: a subpoena duces tecum, dated February 4th, demanding "the electronic mail (e-mail) account of 2LT Meridith (sic) Patterson from 1 JAN 2006 until present." John also informed me that he had already provided the requested data.

Needless to say, this is not how you are supposed to do it.

Consider, if you will, the California Rules of Civil Procedure § 1985.3(b). Herein, it states that when a consumer's personal records are being subpoenaed from an entity that is acting as custodian of those records, the consumer must be notified not less than 10 days prior to the date the documents must be produced. (The subpoena indicates that if John sent in the records within five days, he wouldn't need to appear in court; in any case, from his own admission it appears that John sent them within seven days of the date the subpoena was issued.) It also says that the consumer, i.e., me, must be notified "at least five days prior to service upon the custodian of the records", i.e., John. Obviously, neither of these things happened.

Now, you might object that a National Guard case would follow the procedural rules of the Uniform Code of Military Justice, not the CRCP, and you'd actually be right. I include this as an example of why it's important to double-check that any subpoena, court order, or even warrant you're served with is procedurally valid. Furthermore, as you'll soon see, the prosecution's failure in execution actually played very little role in the outcome of my situation — and the UCMJ, or more properly the Military Rules of Evidence, may play a large role in the outcome of the Twitter situation.

So there I was, in Belgium, with three years' worth of my email in the hands of a prosecutor. During that time, I'd used those accounts for both personal and professional communications — with employers, professors, friends, my husband, my company's lawyers, co-authors, relatives, all sorts of things. Most were private (the mailing lists weren't), arguably everything was irrelevant to the case at hand, and a large fraction was privileged communication of one form or another.

This is what is casually known as a "fishing expedition". For what, I'm still honestly not sure. But there it is.

Meanwhile, I lucked into an excellent pro bono replacement legal team thanks to the help of my corporate law firm, and they quickly filed a motion to quash the subpoena. The note on page 2 about the standard and burden of proof set the tone; their goal was to have the surrendered evidence ruled inadmissible. Briefly, they argued that:

1. the request for three years of my mail was overbroad and amounted to "the Government using the subpoena as a discovery mechanism"
2. I had a reasonable expectation of privacy in my email, and my Fourth Amendment rights had been violated since no search warrant was issued
3. 18 USC § 2703(a) provides that the Government must obtain a search warrant to obtain emails fewer than 181 days old, and § 2703(b) requires the Government to obtain a search warrant or obtain a subpoena/court order and notify the network service provider customer to obtain emails more than 180 days old.

There's a pretty close analogy here to what's going on with Twitter. As Chris Soghoian notes, the list of records demanded in the court order can be interpreted rather broadly. The Fourth Amendment and § 2703(a) arguments seem to apply to the interpretation where the DoJ wants the account names and IP addresses of all senders and recipients of Twitter direct messages to and from the affected accounts, if one takes the interpretation that a user of a password-protected account has an expectation of privacy with regard to who s/he is communicating with. (In other words, is the "To:" field part of the content of a communication?) The government covered its bases on the § 2703(b) issue in this case, but there are still substantial arguments to be made depending on what, exactly, is being demanded. Indeed, we will probably see arguments from the affected users' counsel that the court order was improper because the list is so vague and unspecific. (Several articles in it don't even apply to Twitter.)

Moving on to March 6, 2009, the prosecution responded. He made special note of the fact that John Hawley was at that point providing me with service on a non-commercial basis — which is true, and serves in the end to apply the same Fourth Amendment and Federal legal protections that clearly apply to ISP customers to users of shell accounts provided on a casual basis. (To my knowledge, this is the first time this particular circumstance has come up in the courts.) He also tried to claim that because I hadn't asserted or otherwise documented that I had an expectation of privacy in my email, I therefore had none. (The judge shot this down on the grounds of monkeyblade.net's own Terms of Service, which in part had to do with password security; given that Twitter accounts are also password-protected, there would seem to be a similar expectation of privacy in any private communications facilitated and stored by Twitter.)

The rest of his argument amounts to "this motion to quash should be denied because it would be so inconvenient for the government otherwise," although it is a bit eyebrow-raising to note the following on pages 16-17:

Even if 18 U.S.C. 2701 was applicable under subsection (c) the following exception is applicable in this case:
(c) Exceptions: Subsection (a) of this section does not apply with respect to conduct authorized-
(1) by the person or entity providing a wire or electronic communications service

In the present case John Hawley is the host of 2LT Patterson's email. It is Hawley who is accessing the information and he consents to the accessing of this information. This position is supported by Hawley's contacting government counsel, informing government counsel of the existence of 2LT Patterson's email, coping (sic) of the email onto a compact disk and forwarding this disk to the government.

In other words, he's trying to claim that voluntary consent from the service provider is sufficient to disclose the stored communications of a user of that service. (Compliance will be rewarded, Citizen! Have a Bouncy Bubble Beverage.) I have to wonder how many times this argument has been tried that we haven't heard about, and how many people have fallen for it. For what it's worth, my lawyers' reply brief discusses this in detail, citing Freedman v. America Online. Sysadmins, listen up: the fact that the government is asking does not mean it's necessarily a lawful request on their part. Do like Twitter, and consult with counsel first.

Finally, Judge James K. McFetridge ruled on the motion to quash. He found that the issuing of the subpoena triggered my Fourth Amendment protections, and that the ECPA required "specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or other electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation," which the government failed to meet. He also found that the subpoena was overbroad, even though he probably didn't have to, and ordered that the documents Hawley produced be returned to my counsel.

The court order in the Twitter matter claims that reasonable grounds have been articulated; they are not, however, detailed in the order, so perhaps the briefs that influenced the decision to issue the order haven't come to light yet. Presumably someone will invoke due process in an effort to find out what they are. As well, the issue of stored communications less than 181 days old remains, along with the Fourth Amendment trigger. Like U.S. v. Warshak, this is shaping up to be a case that clarifies some grey areas in the ECPA.

It remains to be seen whether the U.S. Department of Justice will be able to surpass 1LT Stone's degree of legal sophistication in its response to the motions to quash that are likely forthcoming from Jonsdottir, Gonggrijp and Appelbaum. (Short answer: probably.) Twitter generally seems to have its bases covered; it's everyone else who needs to be paying attention. There's a great deal of speculation about whether Google and Facebook have also received sealed court orders, but I've also heard anecdotal reports — that may or may not have anything to do with the case the Twitter order relates to — of university sysadmins surrendering users' account information and emails to government request. (My sources did not know whether these requests were warrants, court orders, subpoenas, or sternly worded remarks on official letterhead.) Many small-scale sysadmins — at startups, for instance — don't have access to legal counsel like sysadmins at big corporations do, and it's incumbent on all of us to know our responsibilities to users under the law.

What this all suggests, then, is that there will — or at least should — be a great deal of attention paid to the provenance of the evidence in the upcoming trial of Bradley Manning. (Manning's also named in the order, and I concur with the general observation that the interest in Jonsdottir et al relates to the Collateral Murder video.) Any sloppiness on the part of the prosecution with regard to evidence-gathering may very well end up parlayed into actions that render sloppily-seized evidence entirely inadmissible under the Military Rules of Evidence 311(e). (Told you it was relevant!)

One question that my case doesn't address at all is whether evidence that has been ruled inadmissible due to improper process, Fourth Amendment violation or whatever can be reintroduced pursuant to the issuance of a valid search warrant. The prosecution never tried and I don't know whether the "fruit of the poisonous tree" doctrine applies here. I get the impression that Twitter hasn't surrendered any data yet, so that point may be moot anyway, but I'm curious whether it might be an issue for other affected providers.

Another question that never fully took shape in my case was that of liability on the part of the service provider. 18 USC § 2703(e) protects providers from any cause of action stemming from their disclosing data in accordance with the terms of a court order, warrant, or subpoena, but this leaves open the question of whether a provider is open to liability if it complies with an unlawful action, which the Twitter court order may be found to be. Would Facebook be liable if it complied with a sealed court order later found to be unlawful? Would John Hawley?

So, as is typical with cases that are likely to be landmarks, such as Manning's, there are a lot of open questions. But the Department of Justice faces an uphill battle on Fourth Amendment grounds, and the outcome of the matter directly at hand will shape privacy case law for years to come. It's going to be an interesting fight.