Security Roundup

Not only is the U.S. Congress about to vote on anti-encryption legislation, but so is California. The bill going through the CA State Assembly "would ban default encryption on all smartphones" sold in the state.

Those laws could make the push to have Apple build iPhones even it can't unlock moot. Though, some companies - including Facebook and Google - are working to increase privacy protections in the face of the next attack on this front - WhatsApp.

Unfortunately, President Obama is showing that he doesn't understand the importance or technical issues of encryption either. He "keeps mentioning trade-offs, but it appears that he refuses to actually understand the trade-offs at issue here. Giving up on strong encryption is not about finding a happy middle compromise. Giving up on strong encryption is putting everyone at serious risk."

Could the government demand the iOS source code and signing key? A footnote in the DOJ brief says the following:

For the reasons discussed above, the FBI cannot itself modify the software on Farook's iPhone without access to the source code and Apple's private electronic signature ... The government did not seek to compel Apple to turn those over because it believed such a request would be less palatable to Apple. If Apple would prefer that course, however, that may provide an alternative that requires less labor by Apple programmers."

In other words, "it would be a shame if we had to take that code from you."

Mr. Fart and phone security -- the comparison between cockpit security and phone security is great. 

Why it matters

I've posted a lot about security and privacy lately and will continue to do so because I believe this could be a defining movement both in law and culture with respect to security, privacy, and surveillance (maybe Crypto Wars 2.0). It's not just the FBI's request to Apple either. Facebook could soon be clashing with the DOJ on the WhatsApp messaging application in a case regarding wiretapping. There is also activity in the U.S. Congress which is preparing to vote on a bill that would punish tech companies that refuse to cooperate with investigators, specifically on encryption. The importance of these events can't be overstated.

The importance of encryption per se can't be overstated either because it is an enabling technology that gives private citizens power against mass surveillance. John Reed at Just Security, wrote about this topic recently. He was reacting to the oft-cited yet dangerous argument that "if you don’t have anything to hide, you shouldn’t have anything to worry about." He states,

A government’s abuse of surveillance to intimidate and discredit law-abiding citizens isn’t something that happens only in places like Russia. It’s happened time and again, even in democracies as strong as the United States. Within living memory in the US alone, one can recall Nixon’s enemies, Sen. Joseph McCarthy’s anti-communist witch hunts, J. Edgar Hoover’s FBI files on everyone who may have posed a threat to his power, COINTELPRO, and more specifically, that program’s use of surveillance to assist in attempt to ruin Martin Luther King Jr., the list goes on. There is simply no reason to think that such abuse will not occur again. So why should you care if you’re always being watched? Because your self-perceived innocence may not protect you from the kind of abuses we’ve seen repeatedly over the past century (emphasis added).

Jenna McLaughlin at The Intercept shows how Reed's comment emphasized above is all too true with respect to Black Lives Matter movement. Quoting a grassroots organizer,

"The mundane surveillance of people of color is what gives rise to bulk surveillance at a federal level … not the other way around," she said. "Whatever has been considered normal at a local level" -- including systems of suspicious activity reports, predictive policing, and other tactics -- "has now been considered normal at the federal level."

Even beyond the realm of social justice movements, the fact of the matter is is that everyone has something to hide or something in their life that they want to keep private. Reed quotes Bruce Schneier as saying that "[p]rivacy is a basic human need," and that being watched turns us into children under watchful eyes waiting to be implicated by patterns from our past lives.

This is why the fight for strong encryption and against surveillance matters.

Is code speech?

In Apple's fight against a court order compelling it to create specific software to enable the government to break into an iPhone, the company is invoking its First Amendment rights as one of its defenses. In particular, they claim that the government is compelling speech by forcing it to digitally sign the special version of iOS. The Electronic Frontier Foundation (EFF), in their amicus brief in support of Apple, explains how digital signatures are a way of communicating endorsement of a signed document. (Also see the EFF's FAQ on the matter.)

In making this defense, Apple and EFF (as well as others) typically use the term "computer code is speech" in reference to previous court decisions which protected companies and individuals developing software, in particular encryption software. However, this idea (code as speech) is controversial. Below, I will address law professor Neil Richards's claim that "Code = Speech" is a mistake. (As a reference, please also refer to Apple's filling.)

Code is a means of expression

Richards states that "Apple has told the court that 'under well-settled law, computer code is treated as speech within the meaning of the First Amendment.' Unfortunately, it's wrong about that. The Supreme Court has never accepted that code is protected like speech." The problem is that Apple never said that The Supreme Court has ruled on the matter - they referred to "well-settled law." From that perspective, Apple is correct. They even list the lower court case-law to illustrate.

For instance, in Bernstein v. Department of State the U.S. Court of Appeals, Ninth Circuit says "we conclude that source code is utilized by those in the cryptography field as a means of expression, and because the regulations apply to encryption source code, it necessarily follows that the regulations burden a particular form of expression directly" (emphasis added). The court here explicitly refers to cryptography which is exactly what Apple refers to in their filling. They say that

The government asks this Court to command Apple to write software that will neutralize safety features that Apple has built into the iPhone in response to consumer privacy concerns. The code must contain a unique identifier "so that [it] would only load and execute on the SUBJECT DEVICE," and it must be "'signed' cryptographically by Apple using its own proprietary encryption methods (emphasis added).

More directly, though, Apple also lists the case of United States v. Elcom Ltd. which was ruled by the U.S. District Court in Northern California. In that ruling the court states that

the government contends that computer code is not speech and hence is not subject to First Amendment protections. The court disagrees. Computer software is expression that is protected by the copyright laws and is therefore "speech" at some level, speech that is protected at some level by the First Amendment (emphasis added).

At least two other cases address this claim as well:

• Universal City Studios, Inc. v. Corley - "Computer programs are not exempted from the category of First Amendment speech simply because their instructions require use of a computer"  
• Junger v. Daley - in reversing a lower court's decision stating that encryption code is not expressive speech, the U.S. Appeals Court, Sixth District concluded that the First Amendment does in fact protect computer source code 

Richards is correct in saying that the Supreme Court hasn't ruled that "code is speech" but they haven't ruled contrarily either. The current accepted view of the courts is that computer code is a form of speech.

Speechiness is not the issue - regulation is

Having said all of that, I do believe that Richards makes a good point when he says that

What matters, in the end, isn't the metaphysics of "speechiness," [the central question of asking whether code is speech] but whether a government regulation of an activity threatens the traditional values of free expression -- political dissent, art, philosophy, and the practices of self-government...The right question to ask is whether the government's regulation of a particular kind of code (just like regulations of spending, or speaking, or writing) threatens the values of free expression.

Like Richards, I see this as the true issue at hand. The clumsy language used by the various courts above only confuses the matter. Computer code is really more like words, not speech, and like words used in other forms of expression, the content matters. Richards provides an illustrative example when he implies that it would be silly (my word not his) to protect malware writers because the code they used to write the programs was protected speech.

In defense of that last view, Richards writes "Code = Speech is a fallacy because it would needlessly treat writing the code for a malicious virus as equivalent to writing an editorial in the New York Times." I have some trouble with this analogy because I could see a case where these were equivalent. For instance, if the New York Times published an editorial that incited a riot in Times Square, that would be the same as writing a malicious virus (or DDoS attack). Using words to incite violence is not protected by the First Amendment, nor is using code to inflict damage. And this, as I see it, gets to the real heart of the matter. However, I wouldn't go as far as Professor Richards in calling for regulation of code.

Conclusion

While I believe that Apple has a valid First Amendment argument in their fight against the government, I also think the simple slogan of "code is speech" and what it implies is clumsy. Computer code can be used to achieve great things including giving power to the powerless and limiting the power of the powerful. In that way, it is no different from traditional values of political dissent, art, and philosophy.

Whatever

Get used to America, we just may not be that unique.

An interesting approach to limit wasteful exchanges of political favors during election cycles. "In ancient Athens, not only juries but many office-holders were selected by lot. But the most intriguing unpredictable election process was probably that of the medieval Venetian Republic. In Venice, many political offices were selected by a repeated cycle of lottery, vote, .... lottery, vote."

The Ukrainian power grid was hit by Russian-sponsored hackers late last year. Kim Zetter has the compelling story. The scary part - "the control systems in Ukraine were surprisingly more secure than some in the US, since they were well-segmented from the control center business networks with robust firewalls."

Oh France! Why? "[T]he French National Assembly has amended a pending counterterrorism bill to impose heavy penalties on technology companies that fail to cooperate in decrypting communications relating to terrorism investigations."

Science is messy. "An influential psychological theory, borne out in hundreds of experiments, may have just been debunked. How can so many scientists have been so wrong?"

Artificial "octopus skin" for robots - what more needs to be said.

While bitcoin is having some success, maybe it's the blockchain that will be the real 'game changer.' "Goldman Sachs says the technology 'has the potential to redefine transactions' and can change 'everything.'"

"Legal marijuana may be doing at least one thing that a decades-long drug war couldn't: taking a bite out of Mexican drug cartels' profits."

Could the insurance industry help reform American policing? Radley Balko found "several examples in which insurers had demanded changes to policies regarding the use of SWAT teams, usually after one or more incidents that resulted in a payout to someone shot or injured during a police raid...[T]he financial incentives insurers can offer to cities and towns for good policing are powerful."

Bonds by William Dupre
All that we look to spend
To suit a legacy
With others there to lend
The bonds that are not free.
The sense we must abuse
And trespass to for-give
On lies we like to use
For lives we long to live.
We must, but no alone,
End the art to deceive,
Lest what we love be gone
And we ourselves take leave
Of senses that are the
Guise of what is to be.

Security Roundup

I've been blogging a lot about security lately, but there is a lot going on to blog about. Here is a roundup of some hot news items.

ACLU: You can kiss trust in software updates goodbye if Apple's forced to help the FBI: "What the government seeks here is an authority that would undermine American and global trust in software security updates, with catastrophic consequences for digital security and privacy."

We are currently dealing with the consequences of intentionally weak cryptography. The latest is the DROWN attack which exploits bad decisions made by the U.S. government during the 1990s Crypto Wars. "Today, some policy makers are calling for new restrictions on the design of cryptography in order to prevent law enforcement from 'going dark,'...[H]istory's technical lesson is clear: Weakening cryptography carries enormous risk to all of our security."

The U.S. government has funded projects like TOR and Open Whisper with the intention of giving dissidents across the world the ability to communicate freely. So, is the government fighting itself on encryption? "We thought the risks of not allowing the Internet to be secure and a vehicle for free speech was more detrimental than the risks of bad guys using it in ways that made it harder to go after them."

Could the Feds get into iPhones without Apple's help? Maybe they should ask the NSA.

Whatever

• An open-source alternative to Android Wear OS
• Wonderful piece, great player
• Pirates of the 21st Century!
• Help Wanted for hackers - "Some groups also offer incentives for new talent, such as promising fame and notoriety, profit-sharing, and travel expenses."
•  How to make good decisions? Don't ignore the base rate.
•  FBI's Tor hack shows the risk of subpoenas to security researchers - "If you're a researcher, you need to think: Am I going to get subpoenaed here? Should I be gathering this information and risking putting it into the wild?"

Oh, God! a lipogram in O by William Dupre
Oh! To know God’s blood,
Don’t brood on school’s rot
Or cool to Mom’s cocoon -
Stomp on roots of doom!

Look to books for food
To stop torpor’s hoofs.
Don boots to crook cons
Or to loot God’s boon.

Go now! Look how blooms
Took to soot on sod
On footholds of foo
To grow food for fools!


Pirate Ship image courtesy of EricaMaxine Price at Fine Art America

Apple gets some love from the Big Apple

U.S. Magistrate Judge James Orenstein in New York has ruled against the government in a separate All Writs Act request to unlock an iPhone. Alex Bewitt at InfoQ highlights some of the key points in the decision (the full ruling can be found here).

This is a scathing ruling against the government.One key point appears in a footnote:

In considering the burden the requested relief would impose on Apple, it is entirely appropriate to take into account the extent to which the compromise of privacy and data security that Apple promises its customers affects not only its financial bottom line, but also its decisions about the kind of corporation it aspires to be. The fact that the government or a judge might disapprove Apple's preference to safeguard data security and customer privacy over the stated needs of a law enforcement agency is of no moment: in the absence of any other legal constraint, that choice is Apple's to make, and I must take into account the fact that an order compelling Apple to abandon that choice would impose a cognizable burden on the corporation that is wholly distinct from any direct or indirect financial cost of compliance [emphasis added].

In other news from New York, District Attorney Cyrus Vance Jr. will go before Congress to discuss encryption. As Gregg Keizer at ITWord says of Vance, he "wanted Apple to return to the security model it used through 2013's iOS 7. 'We want smartphone makers to offer the same strong encryption that Apple employed before iOS 8,' Vance said."

Apple wants personal device security to be controlled by the person; the government wants it controlled by the government via corporate proxies.

Measures of Inequality

Robert Samuelson has an article on some recent research on inequality by the White House's Council of Economic Advisers (CEA). Samuelson summarizes one point as follow:

[The CEA] attributes much inequality to differences between companies and not to individuals in the same firm. It’s not so much that the gap between the chief executive and the janitor at company A has widened; it’s that company A is falling behind company B, which is more profitable and pays both the CEO and the janitor better. Think General Motors (company A) and Google (B). The economy is splintering into increasingly and decreasingly profitable firms, argues CEA Chairman Jason Furman.

Income inequality is a complex phenomena which has many causes. Some may be institutional failures (e.g., rent seeking, poor schools), while others could be signs of growth and lifestyle changes (e.g., innovation, demographic changes, immigration). And that is ignoring the measurement issues around compensation (i.e., the growth of fringe benefits and government transfer payments). Samuelson argues against "stock explanations" like greed and corporate compensation packages to CEOs, and I agree.

Apple Defenses

Kim Zetter at Wired has an article up explaining the First Amendment defenses that Apple could use in its case against the government. As I mentioned in a previous post, the courts have ruled that, in essence, computer code is speech. A defense tactic in this vein could argue that requiring Apple to write a special version of iOS is compelled speech. However, as Zetter illustrates, there is another line of defense Apple could take, and it pertains to the digital signing of that new code.

Instead, it's the digital signature that Apple would use to sign that code that is the key to Apple's First Amendment argument, say legal experts who spoke with WIRED. "The human equivalent of the company signing code is basically saying, 'We believe that this code is safe for you to run,'" says Jennifer Granick, director of civil liberties for the Center for Internet and Society at Stanford Law School. "So I think that when you force Apple to cryptographically sign the software, it has a communicative aspect to it that I think is compelled speech to force them to do it."

"[B]ecause what's so expressive, necessarily, about that? But to me, the signing is expressive—very clearly so," she says. "That's kind of what the code signing is—it's saying 'I'm Apple Computer and we support this software and we think this software is safe for you to run'...So a forced signature to me is compelled speech."

 If Apple were to use this defense it could set some interesting precedents for digital signatures.

Other than the First Amendment, Apple could take the 5th in this case. Not refuse to testify, of course, but apply that other pesky part of the 5th Amendment - due process. David Kravets at Ars Technica explains how "conscripting Apple to build something that it doesn't want to do...is a breach of its 'substantive due process.'"

There is also the question of whether Congress has already had its say in this matter. The All Writs Act that the FBI is using to compel Apple only gives courts a tool to enforce existing statutes. As Albert Gidari shows, Congress in 1994 passed the Communications Assistance for Law Enforcement Act (CALEA) which "did not prohibit a [telecommunications] carrier from deploying an encryption service for which it did not retain the ability to decrypt communications for law enforcement access" (emphasis mine). So, CALEA could trump AWA. It is yet to be seen, however, if the courts view Apple as a "telecommunications carrier."

Whatever

• Surprise! (not really) PATRIOT ACT expanded beyond terrorism investigations
• U.S. Marshals using stingray devices for cellphone surveillance. Taking a note from above, how long before this is used for...well...whatever.
• Military-funded study predicts when you'll protest on Twitter
• Recording cops isn't necessarily protected by the First Amendment. A dangerous precedent here basically saying that speech is only protected if it is some form of challenge or criticism.
• The Sony hack wasn't just a one-off. The Lazarus group has been causing mayhem for years.
• Apple may look to the Fifth Amendment for protection against the government. "If this legal argument sounds novel, it's because the government's claim is unprecedented." But they may actually get protection from an existing wiretapping statute.
• Bitcoin, Hai!
• I'll care about gravitational waves when I can surf them 

Little Lies by William Dupre
We can't escape
Having a little of what we hate
Of others within ourselves. 

Yet we let the lie reside
Lest we make light the biases
We desire to hide --

The Hypocrisy doesn't wear well
As we tell stories of the self.

Bubble Watch

Evan Soltas has an article looking at how the decline in oil prices could end up hitting the banking sector. He writes,

That link to the financial system has people on edge. Andrew Levin, a former adviser to Ben Bernanke and Janet Yellen, has been ringing the "recession" alarm bell as loud as he can. Larry Summers has warned policymakers to "heed the fears of financial markets."

The banks are tied up in this for a simple reason: America’s fracking boom was brought to you by very aggressive financing. Buying land, drilling a well, renting equipment, hiring a team, and securing pipeline or rail space to ship out the oil — all that takes capital, and the banks provided it at low interest rates with little equity from the borrower.

Banks lent so much to frackers that the cost of debt service consumed 60 percent of cash flow before oil prices fell, according to the Energy Information Administration. The collapse in oil prices makes that kind of debt unpayable. Frackers will default and force banks to eat the loss. (Emphasis in the original)

He also has a graph showing how this exposure is hitting banks stocks.

Tim Hartford also writes about how cheap oil might trickle through the economy. He's worried that consumers are using the spare cash from cheap gas to save and not spend more. I'm skeptical of the notion that savings is bad, and think that it could be the cushion to soften the blow of a fall. However, he may be right that innovation in the clean energy sector may slow because of the disincentive to invest that industry. On the other hand, how much of the clean energy sector is being propped up by government subsidies?

I'm not willing to bet on a big slow just yet, but both articles are worth a read to understand the difficult times that may be ahead.

Postscript: Above, Soltas mentions the fracking boom and how it was brought on in part by aggressive financing of, among other things, rail space for shipping oil. Working in the rail industry, I for one know that there has been a slow down in shipments of energy-based commodities. Coal shipments have been hit the hardest, but other areas are being hit as well.

The Security Chess Game

The Justice Department is now chiming in to defend the FBI's All Writs Act request to Apple. We've also learned that late last year the White House ordered government agencies to work around encryption. As Bloomberg reports, agencies were requested to "find ways to counter encryption software and gain access to the most heavily protected user data on the most secure consumer devices."


In the DOJ's defense of the FBI's request, they said that Apple's refusal to comply "appears to be based on its concern for its business model and public brand marketing strategy." That may be true, but the government is playing the same game. It looks like they are using the emotions around the San Bernardino incident to garner political support for a more strategic move against companies refusing to break encryption. They know this could set the precedent they need to strong arm industry players into either installing "backdoors" on encrypted devices or bending over whenever the FBI comes knocking.

So we have competing strategies at play: the enabling of security vs. the subversion of security. Which one were you taught in high school was the government's side?

As I mentioned in a previous post, government agencies have ways to get into devices. Andy Greenberg has an entire article on the ways government officials can get access to data on an iPhone. So this really does seem like the government is playing a chess game here.

***

Regarding the All Writs Act request, check out Orin Kerr's thoughts on the 1789 statute. The ruling precedent right now is the 1977 case United States vs. New York Telephone. According to Kerr,

The tricky part of New York Telephone is that the Court left the actual test for what the AWA allows frustratingly murky. The Court was comparatively clear about one essential limit on a Court’s power under the AWA: "We agree that the power of federal courts to impose duties upon third parties is not without limits; unreasonable burdens may not be imposed." Okay. But the rest of what the Court says is really unclear.

So the chess game could be a long one.

#FBIvsApple

Elsewhere (on Facebook), I backed away from a claim that the order issued by the California Court requiring Apple to assist the FBI in accessing a locked iPhone was a 4th Amendment issue. In this particular case it clearly isn't. However, if Apple loses its challenge, the precedent set could have longer term 4th and 5th Amendment issues. (This is important because the current makeup of SCOTUS, especially since the passing of Justice Scalia, leans towards deference to the government is such cases.) There is also an interesting First Amendment issue to consider. In Bernstein v. Department of Justice, the U.S. District Court for the Northern District of California ruled that, in essence, computer code is equivalent to speech. So, is it compelled speech if the government requires Apple to create a modified version of iOS?

So, clearly there are some Civil Rights issues on the line with this order.

Another interesting angle in this case is the question of whether the FBI actually needs Apple at all. It is known that the government has tools to hack into software systems already. Specifically, the NSA has a stash of zero-day exploits it has collected over the years. Now, of course, the NSA isn't going to share those with the FBI, but could the FBI have its own stash? Also, are they really just using this order to set a legal precedent? Or are they using it to garner public support to force software companies to include backdoors in encryption tools? There is no evidence that this is what is going on, but these are some of the issues that are now in play.

Apple has a fight on its hands and we will soon see how this particular case plays out. However, there are serious security, technology, privacy, and rights implications that will play out over the longer term.

What it means to be part of the Unwritten Constitution

The following is the third and final assignment submitted in the Coursera Constitutional Law class taught by Professor Akhil Reed Amar of Yale University.

In the 1819 Supreme Court case McCulloch v Maryland, Chief Justice John Marshall wrote that “[the Constitution’s] nature ...requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves...We must never forget that it is a Constitution we are expounding.” This process of deducing and expounding has been guided by a set of supplementary texts, practices, and principles which have become part of an unwritten Constitution. But how does something become part of this tradition? To answer this question we must not only look at the existing components of the unwritten Constitution, we also have to understand the historical context in which they emerged.

A primary component of this tradition is the Declaration of Independence. Its themes of self-governance, equality, and individual liberty guide us in interpreting the terse text of the 1787 document. Looking at the Constitution in the context of the Declaration, we can better understand and interpret key parts of the Bill of Rights. For instance, the Third Amendment's protection against the quartering of soldiers in private homes is directly related to a grievance in the Declaration. Also, interpreting the Ninth Amendment’s vague language of “rights retained by the people” is more easily understood in this broader context. So, the Declaration of Independence provides the philosophical and historical foundations for interpreting the written Constitution.

With the philosophical foundations put in place, we can then turn to the process of ordainment and ratification as a second tool for expounding the written text. This process included a national discussion which saw the document come to life in debates across the states. The Constitution itself was printed in papers for all to read and discuss, but so were letters both in favor of and against ratification. This experience strengthened the bonds of a participatory democracy and showed the importance of both free speech and a free press.

While the bonds of democracy were strengthened during the nationwide debate, the democratic legitimacy of the Constitution was strengthened by the inclusiveness of its ratification process. When it was time for the people to select their convention delegates, states lowered or completely dropped property qualifications for voting - a radical concept for the time.

Both of these ideas - open debate and more inclusive voting - give us a context for better understanding the birth of the Constitution. They also start a tradition that is more fully realized over time under the lived Constitution.

Subsequent generations have added their voice to the unwritten Constitution through a set of emerging practices, or what Professor Akhil Reed Amar calls “hearing the people.” For instance, certain legal practices that are currently taken for granted were not common during the founding generation. Concepts such as testifying in court on one’s own behalf, proof beyond a reasonable doubt, and providing evidence for one’s defense have emerged over the past two centuries. This “lived Constitution” as Amar calls it, has given those generations that have followed the founders, the ability to mold the legal and political culture under which they have lived.

So, for something to be part of America’s unwritten Constitution, it must be part of an emerging and evolving legal, political, and cultural landscape. In short, it means being part of the process of expounding the written Constitution.

Constitutional Textualism

The following is an essay submitted for an assignment in the Coursera Constitutional Law class taught by Professor Akhil Reed Amar of Yale University.

Some constitutional scholars, who call themselves textualists, say that the only source of meaning in constitutional law should be the text of the Constitution itself. While being faithful to the text is important, there are instances that require us to look beyond strict textualism.

We can take the example of the Vice President and the question of who shall preside over his impeachment. A strict reading of the Constitution would indicate that the Vice President himself would preside. After all, he is the presiding officer of the Senate (where impeachment trials are held) and the text of the Constitution only allows for an exception to this rule when the President is impeached. Is it absurd to think that we would allow a man to preside over his own trial? It would seem so, but only by looking outside of the literal text can that absurdity be understood.

To look outside, however, we must first start by looking at the document itself more holistically. For instance, the preamble states that the Constitution was ordained, in part, to “establish Justice.” Is it just for a man to preside over his own trial? James Madison in Federalist #10 points out that “no man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.” So, we can identify an obvious error in the document only by understanding the legal culture in which it was drafted.

To rectify this particular error, however, we can look to the text itself, but only by “reading between the lines,” as Professor Akhil Reed Amar would put it. Specifically, the Senate, with the power to “determine the Rules of its Proceedings,” could easily appoint some other party to preside over the Vice President’s impeachment.

Other than addressing obvious holes in the document, there are specific areas in the text that require interpretation beyond the literal reading. For instance, the Ninth Amendment states that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This implies that the people have rights prior to the establishment of the Constitution. But how are we to determine these rights?

To address this problem, Professor Amar suggests that we take into account how Americans have “lived their lives in ordinary ways.” Put more broadly, we must look at the “lived Constitution.”

An example of the lived Constitution is the emergent norm of defendants testifying on their own behalf at their trial – something that was not allowed at the time the Constitution was written. Over time, however, this practice has become so commonplace that to strike it down as being unconstitutional would seem unjust.

We also have to look to a lived Constitution if we expect to address legal questions that involve modern technology. For instance, is a person’s cellphone protected from an unreasonable search under the 4th Amendment? (See U.S. v. Wurie.) Such devices today can contain a wealth of information about our lives, including financial information, personal contacts, schedules, etc. It would seem that they would be protected as personal papers and effects.

However, in Chimel v. California (1969) the Supreme Court ruled that police can search the immediate vicinity of a subject. Does this include a cellphone a subject may be carrying? If so, how much of the cellphone can be searched before such a search is considered unreasonable? Such questions need to be answered by interpreting not only the textual but also the lived Constitution.

An argument could be made that the issues listed here could be addressed by the amendment process of the Constitution. This, by its very nature, would be a more textualist approach. However, such an approach would, as John Marshall put it, “partake of the prolixity of a legal code,” and turn the Constitution into a document that “could scarcely be embraced by the human mind.” A better approach would seem to be to apply various principles and emergent norms to a more consistent, terse text. As Professor Amar would say, these principles and norms would help supplement, not supplant the text of the Constitution.

The Democratic Nature of the U.S. Constitution

The following is an essay submitted for an assignment in the Coursera Constitutional Law class taught by Professor Akhil Reed Amar of Yale University.

The U.S. Constitution opens with the statement “We the People,” announcing the most “democratic deed” in history. The democratic nature of the document is embodied in several aspects, the first of which was the ratification process.

While the document itself only required “Unanimous Consent” by state conventions, 8 of the 13 states lowered property restrictions to allow more people to vote for ratification convention delegates. This allowed for broader participation amongst the people. No other great democracy in history had allowed for such a broad level of participation in their constitution's ratification process. For instance, the Articles of Confederation, the governing document of the states prior to the Constitution, was sent out to be ratified strictly by the state legislatures - no special consideration was given to the citizens of the states. Also, the English constitution, such as it was, was never reduced to a single document on which the British people could vote. Only Massachusetts and New Hampshire had put their state constitutions to a vote by the people of the various townships (examples which set the stage for the U.S. Constitution).

There are also various provisions within the document itself that demonstrate democratic values. For instance, members of one house of the bicameral legislature, the House of Representatives, are elected biennially “by the People of the several States.” The Articles of Confederation, by contrast, had only one house and its members were chosen by the various state legislatures (except for Connecticut and Rhode Island where voters could weigh in on the selection of delegates).

The Constitution also requires the House of Representatives to change in size (initially) and apportionment based upon population growth. This would mean that the lower house would continually reflect the changing demographic shape of the people. This was not, however, a feature of the Articles of Confederation which limited states to between 2 and 7 delegates for its congress, the actual number being determined by the state legislature not by the size of the state's population. (The restriction on the ability of colonial assemblies to adjust in size based upon population shifts was actually one of the grievances against the English Crown listed in the Declaration of Independence.)

Other provisions of the Constitution that reflect its democratic nature concern qualifications for office. For one, no person can be excluded from office based upon his or her religious beliefs. As stated in Article VI, “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” In 1787, many (if not all) state governments required office holders to be Christians.

The Constitution does, however, put age restrictions on those seeking to hold office. House members must be at least 25 years old, senators must be at least 30, and the president must be at least 35. While this requirement seems like it restricts participation, it can be viewed as an egalitarian feature.

In many Old World societies the young scions of aristocracy would have an advantage from an early age because of their family heritage. Putting a minimum age requirement on office seekers levels the playing field for those without such a hereditary advantage by giving them time to make their own mark in society.

One final democratic feature of the Constitution is actually something that does not appear in the document itself. That is, there are no property qualifications for office holders. Men of little or no property could now hold any office within the government, something that was uncommon at the time of the Constitution’s ratification. For instance, the English House of Commons was made up of men of vast estates, and even the old Congress under the Articles of Confederation had members whose states imposed property qualifications on delegate selection.

While the Constitution’s democratic nature was unique at the time of its ratification, it must not be forgotten that many in society were still excluded from participation in the electoral and governing processes. Over time, however, the document has been expanded to better reflect the notion of “We the People.”

NFJS 2010 in Raleigh

I attended the No Fluff Just Stuff tour in Raleigh this past weekend with a bunch of others from Railinc. After the event on Sunday I tweeted that I wasn’t all that impressed with this year’s sessions. Matthew McCullough responded asking for some details on my concerns. Instead of being terse in a tweet, I thought I’d be fair with a more lengthy response.

First off, I really wasn’t planning on going this year. I took a look at the sessions and didn’t see enough relevant content that interested me. In 2007 and 2008 I went with a group from Railinc and had a pretty good time while learning about some new things that were going on in the industry. (We didn’t go in 2009 for economic reasons.) This year, however, I felt that there wasn’t enough new content on the schedule that interested me. (I have seen/read/heard enough about REST, Grails, JRuby, Scala, etc.).

What changed my mind about going was the interest expressed by some other developers at Railinc. Since I coordinated the 2007 and 2008 trips, I thought I’d get this one coordinated, and since there was a good amount of interest, I figured I’d give it a shot as well. So, to be fair, I wasn’t going in expecting much anyway.

Here were the key issues for me:

1. Some of the sessions did not go in the direction that I expected. To be fair, though, I was warned ahead of time to review the slides before making a decision on a session. The problem here is that some presenters relied more on demos and less on slides, so in some cases it was hard to judge by just the slide deck.
2. Like I said above, I wasn’t planning on going in the first place because of the dearth of sessions that seemed interesting to me. I ended up going to some sessions because it was the least non-relevant session at that time. There were actually two sessions that I bailed on in the middle because I wasn’t getting any value from them.
3. Finally, and this is completely subjective, some of the speakers just didn't do it for me. While you could tell that most (if not all) of the speakers were passionate about what they were talking about, some were just annoying about it. For instance, some of the attendees I spoke to felt that the git snobbery was a bit overkill. Some of it was just speaker style - some click with me some don't.

Some things I heard from the other Railinc attendees were

• Too much duplication across speakers
• Not enough detail along tracks
• Some of the session were too introductory - could have gotten same information from a bit of googling.

Granted, some of my concerns are subjective and specific to my own oddities. But I do remember that I had enjoyed the '07 and '08 events much more.

I did, however, enjoy Matthew's first session on Hadoop. I knew very little about the technology going in and Matthew helped crystallize some things for me. I also got some good information from Neal Ford's talks on Agile engineering practices and testing the entire stack.

I really like the No Fluff Just Stuff concept in general. I think it is an important event in the technology industry. The speakers are knowledgeable and passionate which is great to see. My mind is still open about going next year, but it will be a harder sell.

Not so Stimulating

I sent the following to the Raleigh News & Observer:

E. Wayne Stewart says that “enormous fiscal stimulus ... to finance World War II led the U.S. out of the Depression.” While it is true that aggregate economic indicators (e.g., unemployment and GDP) improved during the war, it was not a time of economic prosperity.

During World War II the U.S. produced a lot of war material, not consumer goods. It was a time when citizens went without many goods and raw materials due to war-time rationing. It was also a time when wages and prices were set by government planning boards. In short, it was a time of economic privation for the general public. It wasn't until after the war, when spending was drastically reduced, that the economy returned to a sense of normalcy.

The lesson we should learn is that, yes, it is possible for government to spend enough money to improve aggregate economic indicators. That same spending, however, can distort the fundamentals of the economic structure in ways that are not wealth-producing as determined by consumer preferences.

This argument, that government spending during WWII got us out of the Depression, is used by many to justify economic stimulus. The argument I use above comes from Robert Higgs and his analysis of the economy during the Depression and WWII.

For me, though, the biggest problem with the "just spend" argument is that it ignores the nuances and subtly of a market-based, consumer-driven economy. It is like saying that to get a 1000 word essay to a 2000 word essay all you need to do is add 1000 words. There is no thought into the idea that those extra words need to fit into the overall essay in a coherent manner. A productive economy needs spending to occur in the proper places at the proper times, and it is the market process that does this most efficiently (not completely efficiently, but better than the alternatives).

Prediction Markets at a Small Company

Railinc has recently started a prediction market venture using Inkling software. We have been using it internally to predict various events including monthly revenue projections and rail industry traffic volume. In July, we also had markets to predict World Cup results. While this experience has been fun and interesting, I can't claim it has been a success.

The biggest problem we've had is with participation. There is a core but small group of people who participate regularly, while most of the company hasn't even asked for an account to access the software. When I first suggested this venture I was skeptical that it would work at such a small company (just under 200 staff) primarily because of this problem. From the research I saw, other companies using prediction markets only had a small percentage of employees participate as well. However, those companies were much larger than Railinc, so the total number participating was much greater.

Another problem that is related to participation is the number of questions being asked. Since we officially started this venture I've proposed all but one of the questions/markets. While I know a lot about the company, I don't know everything that is needed to make important business decisions. Which brings up another problem - in such a small company do you really need such a unique mechanism to gather actionable information from such a limited collective?

Even considering these problems we venture forward and look for ways to make prediction markets relevant at Railinc. One way to do this is through a contest. Starting on September 1 we will have a contest to determine the best predictor. At the Railinc holiday party in December we will give an award to the person with the largest portfolio as calculated by Inkling. (The award will be similar to door prizes we've given out at past holiday parties.) I've spent some time recently with the CIO of Railinc to discuss some possible questions we can ask during this contest. We came up with several categories of questions including financial, headcount, project statistics, and sales. While I am still somewhat skeptical, we will see how it plays out.

We are also looking to work with industry economists to see if Railinc could possibly host an industry prediction market. This area could be a bit more interesting, in part, because of the potential size of the population. If we can get just a small percentage of the rail industry participating in prediction markets we could tap into a sizable collective.

Over the coming months we'll learn a lot about the viability of prediction markets at Railinc. Even if the venture fails internally, my hope is to make some progress with the rail industry.

Geospatial Analytics using Teradata: Part II - Railinc Source Systems

[This is Part II in a series of posts on Railinc's venture into geospatial analytics. See Part I.]

Before getting into details of the various analytics that Railinc is working on, I need to explain the source data behind these analytics. Ralinc is basically a large data store of information that is received from various parties in the North American rail industry. We process, distribute, and store large volumes of data on a daily basis. Roughly 3 million messages are received from the industry which can translate into 9 million records to process daily. The data is categorized in four ways:

• Asset - rail cars and all attributes for those rail cars
• Asset health - damage and repair information for assets
• Movement - location and logistic information for assets
• Industry reference - supporting data for assets including stations, commodities, routes, etc.

Assets (rail cars) are at the center of almost all of Railinc's applications. We keep the inventory of the nearly 2 million rail cars in North America. For the most part, data we receive either has an asset component or in some way supports asset-based applications. The analytics that we are currently creating from this data falls into three main categories: 1) logistics, 2) management/utilization, and 3) health.

Logistics is an easy one because movement information encompasses the bulk of the data we receive on a daily basis. If there is a question about the last reported location of a rail car, we can answer it. The key there is "last reported location." Currently we receive notifications from the industry whenever a predefined event occurs. These events tend to occur at particular locations (e.g., stations). In between those locations is a black hole for us. At least for now, that is. More and more rail cars are being equipped with GPS devices that can pin point a car's exact location at any point in time. We are now working with the industry to start receiving such data to fill in that black hole.

Management/utilization requires more information than just location, however. If a car is currently moving and is loaded with a commodity then it is making money for its owner; if it is sitting empty somewhere then it is not. Using information provided by Railinc, car owners and the industry as a whole can get a better view into how fleets of cars are being used.

Finally, asset health analytics provide another dimension into the view of the North American fleet. Railinc, through its sister organization TTCI, has access to events recorded by track-side detectors. These devices can detect, among others, wheel problems at speed. TTCI performs some initial analysis on these events before forwarding them on to Railinc which then creates alert messages that are sent to subscribers. Railinc will also collect data on repairs that are performed on rail cars. With a history of such events we can perform degradation analytics to help the industry better understand the life-cycle of assets and asset components.

Railinc is unique in the rail industry in that it can be viewed as a data store of various information. We are just now starting to tap into this data to get a unique view into the industry. Future posts will examine some of these efforts.