7 out of 10 Americans believe the health care law is unconstitutional.

hmm.

7 out of 10 Americans believe the health care law is unconstitutional.

This quote was in an article on Morning Edition as I was driving in to work this morning. The first thing that came to my mind when I heard this was “are 7 out of 10 Americans remotely qualified to say if a law is unconstitutional?” Could 7 out of 10 Americans name the relevant sections of the Constitution which are being used to argue this case? (Interstate Commerce and Congress’ Taxing Authority to name some of the main ones.) I am quite certainly more versed on Constitutionality than the average bear, I have read quite a bit about the Court in general, I have listened to the Oral Arguments in the case, and I don’t think I am qualified to answer the question of the Constitutionality of that or any other law.

In the same article, they also said:

7 out of 10 Americans are opposed to the individual mandate.

Ok, there we go, that is a polling question I can understand and support the data on.  It is a question where the people answering it have the basis to share their feelings.

I don’t understand how a news or polling organization can reasonably ask a question for which the people answering the question are unqualified to even understand the topic on which the question is based?

8 out of 10 Americans believe that the Clique Problem can be shown to be NP Complete by reducing it to Boolean Satisfiability Problem.

People would laugh at any survey that shared this “fact.” (Or at least I would hope they would.)  It isn’t that the assertion isn’t correct (it is), it is just that it is a question that is meaningless to 99% of people out there.  This is not meant to be an insult to 99% of people, just that we should not be presenting statistics on questions that people have no reasonable basis for knowing the answer.

Please stick to questions on polls where people have a reasonably good chance of being able to be informed.  It is probably impolite to say, but if you are not informed about a topic, your opinion really does not make much sense, because you have no basis to form an opinion.

Please stop this bill. - Bill Opening Supreme Court to Cameras Heads to Senate Floor j.mp/ySvuhj #law

— Jeremy Beker (@gothmog) February 10, 2012

I think I suprised people a bit. The bill, Senate bill 1945, proposes amending Chapter 45 of title 28, United States Code to say:

The Supreme Court shall permit television coverage of all open sessions of the Court unless the Court decides, by a vote of the majority of justices, that allowing such coverage in a particular case would constitute a violation of the due process rights of 1 or more of the parties before the Court.

On the surface it may seem odd that I have taken a position opposed to allowing simple viewing access to an institution I have wanted to visit for years. However, my respect for the institution of the Supreme Court is largely due to the fact that it is slightly removed from the general operation of our government. More specifically, it is somewhat removed from the realm of politics.  That is in no way to say that the Supreme Court is immune to politics, but the formal nature of the proceedings and the interaction between the lawyers and the Justices is a more intimate one than say, a Congressional hearing. And I believe this is a great strength.

I believe that by inserting the possibility of a live broadcast of hearings into the system, it will change the dynamics and motivations of the lawyers trying cases.  They will no longer be speaking (primarily) to the Justices themselves, but will be also presenting their case to the broader audience.  I also have the concern that the Justices will experience a chilling effect in that their questions will be scrutinized and challenged far more easily in a political light.  Obviously, all of these things can happen in today’s system; transcripts and audio of cases are already released from the court, but there is a slightly higher bar to overcome that prevents most of the stupid, inane criticisms.  I don’t believe that in the current system the lawyers and Justices are looking to drop the pithy sound bite that can be shown ad nauseam on Fox or CNN.

To play off the comments of supporter Arlen Specter; “Sunlight is the best disinfectant,” I agree in general, however, too much sunlight gives you skin cancer.

You can share your opinion on Open Congress – S.1945.

Bombe detail by Garrettc, on Flickr

CNET and others have been running stories lately regarding a new feature of a product called Passware Kit Forensic 11.3 which has the ability to now recover the encryption keys from Apple’s FileVault 2 Full Hard Drive Encryption software.  While the articles themselves have done a balanced job of describing the risks, it frustrates me that novices reading the headlines may misunderstand the risks.

• FileVault 2 easily decrypted, warns Passware
• Mac FileVault 2′s full disk encryption can be broken in less than 40 minutes
• Apple FileVault 2 Encryption Cracked By Forensic Software
• Passware: Filevault can be brute force cracked during the span of a lunchbreak

No security product is magic. Each tool is designed to protect your data under certain circumstances and given certain constraints.  Full Hard Drive Encryption is a great tool, but you have to understand its limitations.  It only protects your data when your computer is powered down.  When you are using your computer, your data is accessible, as it obviously must be, since you are using it.

Full Hard Drive Encryption, when used properly, is extremely effective at protecting your data.  Research has shown that it is becoming a challenge for law enforcement (Research team finds disk encryption foils law enforcement efforts) and that the only avenue to recover data is by compelling the owner to divulge their encryption key.  This is becoming an area of law in the United States with regards to 5th Amendment Protections.  (Prosecutors Demand Laptop Password in Violation of Fifth Amendment, Take the 5th? Not With Encrypted Hard Drives, Says Fed Judge, and Does the Fifth Amendment Protect Your Encryption Key? provide some information on the topic.)  This will be an interesting intersection of technology and law in the coming years. You can see the beginnings of this showing up in the recent Supreme Court case United States v. Jones I talked about recently.

Back to Full Hard Drive Encryption.  Memory attacks like those used by the Passware software are nothing new.  Firewire is designed to allow direct memory access.  I doubt the authors imagined it being used in this way, but the “Law of unintended consequences” certainly applies here.  More information on this topic can be found in this very informative article: Physical memory attacks via Firewire/DMA – Part 1: Overview and Mitigation.

The lesson to be learned here is that when using security software (or any security product) it is critical that you understand the security tool and what it can and most importantly can’t protect against.

I am quite pleased with the result, but I found the opinion itself to be particularly interesting. First is that while the Opinion of the Court was only joined by 5 of the 9 justices (Justices Scalia, Roberts, Kennedy, Thomas, and Sotomayor), the other 4 (Justices Alito, Ginsburg, Breyer, and Kagan) concurred in the judgement, but differed in reasoning.  So the Judgement was decided unanimously, which I think is a positive sign for future privacy cases.

Specifically I think this section from Justice Sotomayor’s concussing opinion is worth reading (emphasis mine).

More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. E.g., Smith, 442 U. S., at 742; United States v. Miller, 425 U. S. 435, 443 (1976). This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellu- lar providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medi- cations they purchase to online retailers. Perhaps, as JUSTICE ALITO notes, some people may find the “tradeoff” of privacy for convenience “worthwhile,” or come to acceptthis “diminution of privacy” as “inevitable,” post, at 10, and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protectedstatus only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection. See Smith, 442 U. S., at 749 (Marshall, J., dissenting) (“Privacy is not a discrete commodity, possessed absolutely or not at all. Those who disclose certain facts to a bank or phone company for a limited business purpose need not assume that this information will be released to other persons for other purposes”); see also Katz, 389 U. S., at 351–352 (“[W]hat [a person] seeks to preserve as private,even in an area accessible to the public, may be constitutionally protected”).

This is quite a good thing in my opinion.

Obviously this is not the last time electronic information and privacy will be making its way to the Supreme Court, but I am hopeful based on the opinion of the Court that some of the Justices will look at the larger implications.

As a side note, I find it amusing that, as a self-declared originalist uses the Katz v. United States decision so prominently in the opinion as that case greatly expanded the reach of 4th Amendment protections, aruably beyond the original meaning.

Sunday morning while I was reading over my news, I came across a story summary that talked about two high school students who were severely disciplined as a result of comments that they made about a teacher on Facebook. This resulted in an exasperated noise from me which spawned a really good discussion with Tiffany. The merits of this particular case aren’t really relevant but we had a lively discussion of where a society (in this case, a public school) should draw the line between having the discretion to use situations such as those kids as a teaching opportunity and having to deal with getting chastised by parents and communities for not having “objective” criteria, which seems to result in idiotic “zero-tolerance” policies which do nothing to actually curtail or change the behavior they punish.

Later in the day, I came across a presentation from my Advanced Software Engineering course in graduate school discussing the importance of good teams in producing quality products. One section that struck me again was the area where I discussed the creation of “methodologies” or “processes.” Specifically the dangers of creating rigid processes that took the power to be flexible out of the hands of the people implementing the process and force everything to be written down. I talked about the importance of the interview to find the right people who have the energy, creativity, and curiosity that is needed. One of my favorite authors, Fred Brooks, in The Mythical Man Month describes software development as a craft. It is neither purely an art as it produces practical output but neither is it the mechanical application of a set of rules. To quote Fred Brooks:

…There is delight of working in such a tractable medium. The programmer, like the poet, works only slightly removed from pure thought-stuff. He builds his castles in the air, from air, creating by exertion of the imagination. Few media of creation are so flexible, so easy to polish and rework, so readily capable of realizing grand conceptual structures…

The final nudge to talk about was when I picked up Justice Stephen Breyer‘s Making our Democracy Work, which I have been reading on and off for a little while. I got back into the section where he is talking about the methods by which a judge needs to look at the laws he is being asked to rule on. Justice Breyer espouses what he calls a “purpose-oriented approach” to interpreting statutes. This method holds that the judge must look to the purpose that the legislature intended a law to serve when he is interpreting how it should be applied to a specific case. One of the arguments he uses to support his approach is that if judges were to only rely upon the specific text of a statue, the legislature would be forced to write encyclopedic laws covering every possible situation that might occur in the future.

How do these three topics come together in my head? To me they suggest a truth that I hold dear. In all systems we must trust the people who are implementing them to do the right thing. Processes, rules, and laws must be written in moderation. The old adage that says the tighter you squeeze your fist to hold onto something the more will slip through your fingers is appropriate in all walks of life. The strength of people is there flexibility and if you try to write rules and control every aspect of life or business or software development, you will stifle the very thing that allows for the greatest achievements.