Eligible Once More

I received an exciting email this morning. The relevant part reads

A MESSAGE FOR SEAN KELLOGG
FROM PUGET SOUND BLOOD CENTER

You are eligible to donate blood.

For the past year I've been on the banned list because of my trip to Nicaragua. In a way it was great, because my disqualification stopped the flow of phone calls... but it was also sad, because I like to give blood. Also, I'm just a pint away from getting my first gallon pin!

Time to find me a blood bank.

Supreme Humor

If you've ever read a Supreme Court opinion, or listened to oral arguments from a case, this New York Times article is a must read. Heck, if you're just someone who thinks that government, in the end of the day, is absurd... you need to read this piece.

Internet Governance

The websites I frequent often make a big deal about internet governance. The opinions range from "The United States is the totalitarian dictator of the internet" to "ICANN, a U.S. puppet organization, is the totalitarian dictator of the internet." Truly, the breadth of positions is staggering. Still, it is one of the few ways you can actually get news about such obscure topics as the Authoritative Root Zone File. (Never forget kids, when we are talking about internet governance all we really mean is who has write access to a little old text file on some computer somewhere.)

More observant people may remember the squabble in the United Nations over who would retain governance rights over the internet... pitting the United States against, well, everyone else. Apparently the rest of the world didn't quite have the stones necessary to take the fight all the way, because ICANN, a U.S. puppet organization, still "governs" the internet.

The most recent squabble, as reported in the Register, regards the ccTLDs. Before I get to the interesting part, a quick lesson. Top Level Domains, known as TLDs, are that we call .com, .org, .biz, etc. All of those suffixes that attach to the end of domain names. By attaching .com to the domain name google, the internet knows to query the .com root servers to figure out where, exactly, google.com is on the internet cloud. Living in the United States we are familiar with the TLDs, but such is not the case elsewhere.

See, contrary to the viewpoint expressed by my trademarks professor, there is a limited set of useful words in the world. But thankfully computer scientists came up with the concept of namespace to resolve the limitation. Through namespace concepts we can say the the word "burger" means one thing in one context (say at McDonald's), and a wholly different thing in another (insert good burger joint here). When you apply this concept to the internet you get things like whitehouse.gov and whitehouse.com (not linked here for obvious reasons).

This system works all well and good for the United States as we frolic about the .com, .org, and .net TLDs. But what about other countries? That's where ccTLDs come in. The 'cc' stands for country codes. So now the United Kingdom has its own entire namespace to assign as it sees fit, so long as they append .uk to the end. Pretty cool!

Back to internet governance. According to the news there has been some shifting in terms of political governance of a few nations... places like Afghanistan and Iraq. According to the Register (here's that link again) the ccTLDs for these nations belonged to someone before the invasions, and someone different afterwards. These transfers were overseen by ICANN and are seen as some sort of authoritarian powergrab. I beg to differ.

Prior to the Afghan transfer, all ccTLDs related edits to the Authoritative Root Zone File had to be approved by both the current controller and the new controller. The Afghanistan situation was unique because the fellow who was in charge died in the Kabul bombings. This was not the case in Iraq, where the previous controllers lived in the United States and survived the war quite well. But then the Coalition Provisional Authority wanted to give the .iq root servers to the actual Iraqi government. So they asked ICANN, ICANN initially balked saying that the rules require the old holders approval (which they weren't willing to give) but then backed down and made the transfer.

If I've haven't lost you by now, I'm impressed... and you will be rewarded by getting to hear my thoughts on the 5th Amendment Takings Clause. I happen to really like the Takings Clause, it is a very good bargin for both the government and its citizens. Sure, there will also be squabbles with how it is applied, but in general everyone seems to think it's a good idea. Unfortunately, not every country has seen it fit to enact a Takings Clause like protection. If the Iraqi Interim Government wants the ccTLD, it has the sovereign authority to take it... just like it has the sovereign authority to throw its citizens in jail. What seems to have gotten the Register all upset is this unilateral taking, and yet such a taking is just as possible here in the States (or the UK, where the Register is based). The difference between here and Iraq is that when the government takes, citizens are compensated.

So, does the Register expect ICANN, or the United States as a whole, to begin enforcing the 5th Amendment against other nations? That hardly seems like it's our responsibility or our right. If the previous holder of the Iraq ccTLD has a grievance, they should take it to the Iraqi government. ICANN should not stand in judgment of other nation's political systems. To give ICANN that authority is to truly elevate this puppet of the United States to the position of a global government.

Being the Best

In this case, being the Best Man.. My roommate asked me this afternoon to be the Best Man at his wedding. I've been secretly hoping he would ask, but knew that he could just as easily ask a number of other close males in his life. But, as the title makes clear, I was the best.

Of course, now I have a challenge. On my list of the Things I want to be Remembered For is giving good toasts. Back in my boy scout days I used to be the Troop's Chaplin's Aide, which meant I gave a lot of non-denominational prayers at Court of Honors and group meals. For some reason the parents in the troop thought I was really good at these prayers... even though they were entirely spontaneous. To make things even more confusing, I served as the aide during a time of great personal spiritual angst. Not that said period has past, but it sure was weird giving praise and asking for blessing to a God whose existence I question on a daily basis... and yet those around me, those who kept on asking me to pray on their behalf, believed so fully. But I digress...

The one thing I took away from the experience is that I might, just maybe, be good at giving speeches. I've given a number of political speeches over the years, mostly to student government types. Most people seem to think I've done pretty good. But this time, as the Best Man, I can't fall back on the rhetoric of the body politic. This time I've got to say something meaningful, true, and honest about people I really care about.

I take it as a great honor, and a great challenge...

Anyone got a thesaurus I can borrow?

Total 180

The Blackberry patents case fascinates me, and regulars will remember I've written about it before. I really had my money on the whole thing falling apart for RIM (the maker of the Blackberry) and expecting a billion dollar settlement. But if this New York Times article is to be believed I was way off the mark.

Appearantly the USPTO has taken particular interest in the five relevant patents and hurried the review requested by RIM. Not only has it been hurried, but they sent letters to the parties indicated they intend to invalidate all five patents. Couple of interesting items to note here:

1. The trier of fact in the infringment suit is usually the entity who is responsible for determining validity. I'm not fully familiar with the administrative law surrounding the USPTO, but my guess is the Federal Court is free to take the PTO's final action as simply advisory.
2. Why did the USPTO rush this review, of all reviews? Lots of reviews are pending and will make a world of difference to a wide set of cases, so what makes this one special? It certainly isn't the federal judge's comments that things are going slowly... agencies don't tend to listen to judges untill they start issuing orders. My guess is Blackberry's got a few angles in Congress who pulled a few strings.
3. What does this outcome, from a billion dollar infringement to no infringement, say about the reliability of our patent system? Gives a lot of creedance to those who are trying to reform the patent system. The worry, though, is that the reforms are going to be more corproate friendly instead of being more inventor friendly.

The case remains alive, so the situation is far from settled. NTP is sure to appeal and the judge might throw out the PTO's finding of invalidity. I'll continue to watch and maybe, just maybe, by the time I get to DC the Blackberry craze will have passed.

Dating Survey

A friend pointed me towards a dating strength and weakness survey which was surprisingly comprehensive in terms of questions. The results are telling...

Dating Strengths	Dating Weaknesses
1. Intelligence - 71.4% 2. Generosity - 60% 3. Independence - 57.1% 4. Optimism - 57.1% 5. Sense of Humor - 57.1%	1. Appearance - 77.8% 2. Arrogance - 62.5% 3. Insecurity - 61.5% 4. Shyness - 50%

Dating Strengths Explained
Intelligence - Your sharp intellect is a valuable asset. Use your intelligence wisely; avoid condescension. Quiet, confident intelligence is very attractive. Generosity - You are a giving person by nature. Others will see this quality in you and recognize your kind nature. Take care not to let others take advantage of you. Independence - Your strong sense of independence comes in handy while dating. You are not held back or tied down; you are free to pursue your interests. Optimism - People are drawn to your positive outlook. Your optimism attracts others to you. Sense of Humor - Girls are attracted to people with a good sense of humor. Be sure to put yours on display!
Dating Weaknesses Explained
Appearance - Devoting a greater effort at making good first impressions is a must. Try to be fit and develop a style if you want to catch a girl's attention. Arrogance - You are a bit full of yourself. You need to practice a little humility now and then, as arrogance can be a turn-off. Insecurity - Your insecurity makes you doubt yourself, but you must learn to love and trust yourself if you want to succeed in dating. Shyness - You know all too well the limits shyness places on you. Putting yourself out there in social situations may be difficult, but essential to your dating success.
Take This Dating Quiz

I guess I agree with most of this stuff... except, why do I have insecurity and arrogance listed as a dating weakness. Aren't those mutually exclusive? That being said, this is all reasonably good advice, if only I could find a girl worth expending the energy.

Regarding the NSA Surveillance Program

Lots and lots of press about the NSA surveillance program disclosed by the New York Times last week. I've been trying to keep as updated as possible, reading NYTimes and Washington Post stuff. I supplement that with legal analysis from various legal and technology blogs. I admit to having missed the President's national speech, but I doubt it helps explain anything I didn't glean from the papers. It's a lot of information, and quite a bit to process.

As much as I'd like to jump all over the President and join the calls for impeachment, I refuse to be another political hack. There are some lingering questions worth asking before rushing to judgment. Perhaps the most important question centers on the purpose behind the program. Based on what I've read I can envision two possible purposes: one, to collect information to prosecute those engaged in terrorist activities; two, to collect information to disrupt those engaged in terrorist activities. The distinction is critical.

For the purposes of the record, let's take a look at the 4th Amendment.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The 4th arguably makes the NSA surveillance program unconstitutional. But as with most constitutional provisions, there is more here than initially meets the eyes.

I have not taken Criminal Procedure where the 4th is discussed in detail, but I do know that when warrants are required, and not, is complicated. I can envision a reading of the 4th that says failure to secure a warrant prevents procured evidence to be submitted for purpose of prosecution. But are things different if the evidence is used to facilitate having a an officer at the Golden Gate Bridge minutes before a terrorist is going to plant a bomb?

If we assume that such a purpose is constitutional then I would image certain limitations and tradeoffs. For example, the evidence in question (and all evidence gathered because of that evidence) could not be introduced for purpose of prosecution. So the government could choose to go through the procedural hurdles necessary to secure a prosecution, or it could skip the courts and lose the chance at prosecution (but maybe stop an attack).

There are obvious problems with this approach. For example, the FISA court established for the purposes of authorizing warrants related to international terrorism exists to ensure the government has probable cause before spying on U.S. citizens. I wasn't alive at the time, but the papers say in the 1970s the government spied on the anti-war movement and did so without reason to believe they were engaging in illegal activities or warrants.

The bad in that kind of activity is not immediately obvious. No one is being harmed or thrown in jail. No, the bad is insidious and hard to detect... it is the subtle interference of the government into the lives of citizens. It's something we should avoid, and in many cases the Constitution demands. But then you thrown in the issues present by the war on terror. How do you effectively fight an enemy with no physical form and an uncompromising agenda?

But let's move away from whether I think it's a good idea or not and ask whose opinion does matter. Our government has three branches last I counted. The executive branch made its wishes known... but who is supposed to respond next? Our Constitution says the Congress is next in line to speak. With the committee meetings and the hearings and the subpoenas. So why, oh why, is the FISA Court the next to act?

According to this Washington Post article, the presiding FISA judge has organized a briefing on the NSA program. How does that fit with our Constitutional understanding of Article III courts? Does this mean the Supreme Court now can look for issues it finds suspect and order a briefing? This seems to be the Court looking at the issue sua sponte... which I'm fairly certain it's not supposed to do.

Anyway, there's a lot here. I'm looking forwards to the eventual Congressional hearings (months from now) to get a better understanding of what's going on. I consider myself to be very pro-civil rights... but there is something to this issue that suggest we should ask a few questions before we jump to conclusions.

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UPDATE
The President has made clear the government's legal theory supporting the wiretaps. Based on the information provided to the Congress I'm prepared to say their legal arguments are insufficient.

There remain lingering Constitutional claims that are possible theories, but their primary argument is based on the Authorization of Force from the weeks just after September 11th. They argue that the vague statements included in the resolution provide an implicit exemption from the Foreign Intelligence Surveillance Act. It's a bogus argument that isn't rooted in Constitutional Law.

When the President acts with or without the express will of Congress there is a whole host of interesting tests to determine constitutionality. But when the President acts against the will of Congress the President's authority is limited that that granted by the Constitution. This is a situation where the President is engaging in activity expressly prohibited by the Congress... and a supposed implicit exemption is insufficient to change that. The White House needs to go back to the Constitutional Commander-in-Chief theory if it has any hope of winning.