25 Sep 2014 | News and features, Religion and Culture, United States
(Photo: Shutterstock)
For us jaded Europeans, the United States’ first amendment, with its simple pledge that the government will keep out of the business of religion and censorship, seems as stubbornly, oafishly American as Hulk Hogan. It’s a loud tourist with a bumbag, wasting his money in an Angus Steakhouse; it’s Burt Reynolds’ moustache; it’s Jane Russell’s specially-constructed brassiere; it’s brash and unsubtle and does not do nuance.
Which is why we’re so ready to accept the idea that a US court has decided that the first amendment concept of free speech trumps all, even sexual harassment. Especially if that court is in Texas, the bit, we imagine, that makes the rest of the United States look sophisticated.
“Texas court upholds right to take ‘upskirt’ pictures”, said the Guardian, while the Independent tweeted “You’re legally allowed to take upskirt pictures in Texas because it’s ‘freedom of expression’” (note the scare quotes).
The stories under the headlines concerned a ruling by the Texas Court of Criminal Appeals in a case concerning a man named Ronald Thompson.
Thompson had been caught taking pictures of children and women at a water park in San Antonio, focusing on what I believe is called the “bikini area”. Thompson reportedly tried to delete the photos as he was apprehended. He was indicted on 26 counts under Texas’ “improper photography or visual recording” law.
Thompson appealed the indictments on the grounds that the law was incompatible with the first amendment. The court agreed with him, leading to the headlines across the world. Most reports, including, it should be said, the American ones, went hard on the “upskirt” or “creepshot” angle, declaring it was now entirely legal to well, be a creep with a camera in Texas.
Is it really? Well, sort of, ish.
The judgement issued by the court is a genuinely fascinating read for anyone interested in free expression, far from the gun-toting, sexual harassment-ignoring, good ole boy decision it has been represented as. It involves discussion about what constitutes the public realm and the nature of consent. It goes into some detail as to whether the act of photography is in itself creative expression, and decides it is.
Some commentators, such as Salon’s Jenny Kutner have picked up on the wording in the judgment suggesting that “Protecting someone who appears in public from being the object of sexual thoughts seems to be the sort of ‘paternalistic interest in regulating the defendant’s mind’” as evidence of a court being more interested in a pervert’s right to perv than a woman’s right not to be harassed.
But it’s actually a point well worth making. Courts and governments cannot be involved in what people find sexually arousing in their imaginations; it’s only if actions cause harm to others that the law should intervene.
This is not, then, a ruling taken lightly. Rather it reviews very seriously a badly written law.
The law itself, section 21.15 of the Texas Penal Code, reads as follows:
(b) A person commits an offense if the person:
(1) photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of another at a location that is not a bathroom or private dressing room:
(A) without the other person’s consent; and
(B) with intent to arouse or gratify the sexual desire of any person;
The “bathroom or private dressing room” exclusion seems weird, but is only there because the next clause specifically refers to bathrooms and private dressing rooms, presumably drafted in light of some kind of Chuck Berry scenario (the guitar legend was accused of secretly taping people using bathrooms in his Missouri restaurant).
The problem is that this is far too broadly drawn as a law, but also weirdly specific. What it does not address at all is what might be a reasonable expectation of privacy in public: it is not a serious argument to suggest that one must always actively give consent to being photographed in public space. But it is reasonable to expect that no one should be taking upskirt pictures of you: the judgment acknowledges as much, specifically mentioning upskirt photographs as an “intolerable” breach of privacy.
The weird specificity comes with the “sexual desire” bit; why is this kind of thought worse than any other? Shouldn’t the focus be on the breach (or not) of privacy, rather than what thoughts the images might lead to? Apart from the argument over whether photography is an act of expression, it is this clause that raises free expression problem with the law: put simply, the human mind is capable of eroticising pretty much anything. Any kind of picture could “arouse or gratify the sexual desire of any person”. Once again, the focus is in fact taken away from the act of breaching privacy and towards the act of expression.
In spite of initial appearances, the Texans have done a good thing here. The state will now have to come up with a law that properly balances privacy and free expression, rather than giving just piecemeal thought to either concept.
First amendment cases often solicit astonished responses. But more often than not, a first amendment consideration isn’t just free expression rolling into town in its monstrous, burger chewing, gasoline drinking, Okie from Muskogee way. No. More often than not, the first amendment forces some real thought and analysis to take place in public life.
This article was posted on Thursday, September 25, 2014 at indexoncensorship.org
6 Aug 2014 | Academic Freedom, News and features, United States
(Photo: Georden West)
A women’s university considered to be one of the most restrictive on transgender issues in the US is reconsidering its approach.
Rated as the strictest of any US university on transgender policies by the Chronicle of Higher Education, Hollins University currently forbids students from making any legal or biological step toward becoming male.
But a university official says the school is considering the addition of gender-neutral bathrooms to make the campus more welcoming and to support its students on the transgender spectrum.
Founded in 1842, Hollins University has attracted many now famous names including writers Annie Dillard and Margaret Wise Brown, US Poet Laureate Natasha Trethewey and White House correspondent Ann Compton.
However, in the past few years its restrictive policy on the retention of transgender students has attracted national attention from activists and academics.
The current policy states that any student who “’self identifies’ as a male and initiates any of the following processes: 1) begins hormone therapy with the intent to transform from female to male, 2) undergoes any surgical process (procedure) to transform from female to male or 3) changes her name legally with the intent of identifying herself as a man,” will not be allowed to graduate from the university. After substantial criticism, Hollins agreed to re-evaluate its policy and drafted a new version in 2013. The current policy also maintains the university’s position against allowing female-to-male students and adds that any student who chooses to undergo sex reassignment “will be helped [by university officials] to transfer to another institution.”
The issue of gender-neutral spaces has become increasingly contentious and polarising with the emergence of a new transgender-equality group on campus called EqualiT*. Its appearance was marked by mysterious flyers in bathroom stalls and on announcement boards calling for the addition of gender-neutral bathrooms. Soon a blog and a Facebook page also appeared, and the group began to stage events, including a candlelight vigil to commemorate Transgender Awareness Day. Due to the sensitive nature of the organisation, the group has remained mainly anonymous in hopes of protecting its transgender members. Some students fear that, if exposed, transgender students will lose their scholarships or be expelled from the university. The university has not taken any action against students who are legally and biologically female, but some students say they self-censor because they are worried about what may happen.
With a student population of less than 600, low retention rates and a high-priced tuition cost of over $46,000 per year, critics question whether the university can afford to alienate any portion of its student demographic.
The forced removal of transgender students from Hollins presents not only financial and academic challenges but a threat to students’ safety. Forty-five per cent of transgender university students in the US reported experiencing verbal, physical or sexual abuse due to their gender identity according to a 2011 study by the National Center for Transgender Equality. Many transgender students attending all-female institutions regard the environment as safe and welcoming and fear for their safety in transferring to a coeducational environment. A study in 2006 revealed that one in twelve transgender people is murdered in the United States, and many more experience severe verbal harassment and physical violence.
“I believe creating gender neutral safe spaces should be at the forefront of the actions Hollins is taking right now,” said Cal Thompson, a transgender student who graduated in the spring of 2014. “Everyone needs a safe space for personal business. We don’t want to use the gendered bathrooms just as badly as the cisgendered don’t want us.”
Despite the relative safety transgender students feel at Hollins, students still find the university a challenging place to explore individual gender identities. Perhaps one of the most substantial of these challenges is in the lack of gender-neutral spaces, specifically bathrooms. Because of the requirement for students to remain female during their time at Hollins, students who identify as transgender are prohibited from using the men’s restroom.
“Using the bathroom at Hollins was uncomfortable,” said Lee Collie, a 2013 graduate, known as Leanna during his time at Hollins. “Even if you flip the sign to ‘male’ when you walk in, girls walked in all the time and said, ‘Oh, it’s just Lee,’ which meant that they didn’t really see me as a male.”
Hollins’ Dean of Students, Patty O’Toole told Index, “As we continue to renovate our facilities, when appropriate we are considering developing gender-neutral bathrooms.” With regards to facilities in residence halls, students in each community can collectively determine facility-usage and associated language, O’Toole said. Bathroom usage in residence halls is indicated by a paper sign for each hall’s bathroom, which can be flipped over to indicate different users. Thus, some facilities may be labelled with “men” and “women,” while others may use “residents” and “guests.” No other official steps have been taken to utilise gender-neutral language.
A number of students disagree with the student organisation’s position, including current student Deborah Birch, class of 2016. “I don’t think that there should gender-neutral bathrooms on campus. You apply to Hollins knowing that it is an all-women’s institution. If want to change your biological make-up to transition from female to male, you should choose to attend another institution.”
Though transgender graduate Lee Collie likes the idea of gender-neutral restrooms, he also worries about respecting the larger campus community, specifically those with opposing ideals. “I would probably limit them to the dorms or specific floors, because we have professors and visitors who may not feel comfortable.”
Hollins is not the only US institution struggling over whether it should create gender-neutral bathrooms. Recently Illinois State University has attracted media attention through its decision to change its family bathroom to an all-gender bathroom. Although the change was not specifically requested by any students or faculty, ISU officials made the change in efforts to remain proactive and to promote inclusivity among all members of campus. Over 150 universities across the United States have instituted similar changes in campus facilities, including New York University, Ohio State University and UCLA. Even fellow women’s universities like Smith College in Massachusetts and Agnes Scott College in Georgia have begun to embrace the issue, with the addition of gender-neutral restrooms and more progressive policies.
Collie, a former vice president of the university’s student government association, stated that the policy at Hollins may be strict, but he is glad that Hollins has a policy and acknowledges the existence of transgender students on campus. Other women’s universities have yet to adopt any policy on the matter.
Dean of Students, Patty O’Toole explained that the 2011 policy was originally created by the university’s Board of Trustees in response to students on the transgender spectrum who were seeking a written policy. “Hollins wanted to support those students. The focus of the policy is not strictness but clarifying our institutional mission.”
Collie supported the university’s actions and its mission as a women’s institution, despite the personal challenges he faced, and related the support and camaraderie he experienced at the university. “Hollins has never punished me for being or identifying as male. It isn’t that they’re trying to stop someone from being who they really are, but it is Hollins standing true to itself as well.”
This article was published on August 6, 2014 at indexoncensorship.org
28 May 2014 | Digital Freedom, News and features, Politics and Society, United States
Last week saw a flurry of legislative to-and-fro on the Hill as the US House of Representatives pondered the passage of legislation aimed at ending bulk-collection by the US National Security Agency. The USA Freedom Act, or HR. 3361, was passed on Thursday in a 303-121 vote, and was hailed by The New York Times as “a rare moment of bipartisan agreement between the White House and Congress on a major national security issue”. Congressman Glenn ‘GT’ Thompson (R-Pa.) tweeted that he was the proud cosponsor of a bill “that passed uniting and strengthening America by ending eavesdropping/online monitoring.”
It was perhaps inevitable that compromise between the intelligence and judiciary committees would see various blows against the bill in terms of scope and effect. When legislators want to posture about change while asserting the status quo, ambiguity proves their steadfast friend. After all, with the term “freedom” in the bill, something was bound to give.
Students of the bill would have noted that its main author, Rep. Jim Sensenbrenner (R-Wi.), was also behind HR. 3162, known more popularly as the USA Patriot Act. Most roads in the US surveillance establishment tend to lead to that roughly drafted and applied piece of legislation, a mechanism that gave the NSA the broadest, and most ineffective of mandates, in eavesdropping.
Then came salutatory remarks made about the bill from Rep. Mike Rogers[2], who extolled its virtues on the House floor even as he attacked the Obama administration for not being firm enough in holding against advocates of surveillance reform. There is a notable signature change between commending “a responsible legislative solution to address concerns about the bulk telephone metadata program” and being “held hostage by the actions of traitors who leak classified information that puts our troops in the field at risk or those who fear-monger and spread mistruth to further their misguided agenda.”
Even as Edward Snowden’s ghost hung heavy over the Hill like a moralising Banquo, Rogers was pointing a vengeful finger in his direction. There would, after all, have been no need for the USA Freedom Act, no need for this display of lawmaking, but for the actions of the intelligence sub-contractor. Privacy advocates would again raise their eyebrows at Rogers’s remarks about the now infamous Section 215 telephone metadata program under the Patriot Act, which had been “the subject of intense, and often inaccurate, criticism. The bulk telephone metadata program is legal, overseen, and effective at saving American lives.”
Such assertions are remarkable, more so for the fact that both the Privacy and Civil Liberties Oversight Board and the internal White House review panel, found little evidence of effectiveness in the program. “Section 215 of the USA Patriot Act,” claimed the PCLOB, “does not provide an adequate basis to support this program.” Any data obtained was thin and obtained at unwarranted cost.
Critics of the bill such as Centre for Democracy and Technology President Nuala O’Connor expressed concern at the chipping moves. “This legislation was designed to prohibit bulk collection, but has been made so weak that it fails to adequately protect against mass, untargeted collection of Americans’ private information.” In O’Connor’s view, “The bill now offers only mild reform and goes against the overwhelming support for definitively ending bulk collection.”
Not so, claimed an anonymous House GOP aide. “The amended bill successfully addresses the concerns that were raised about NSA surveillance, ends bulk collections and increases transparency.” Victory in small steps would seem to have impressed the aide. “We view it as a victory for privacy, and while we would like to have had a stronger bill, we shouldn’t let the perfect being the enemy of the good.”
Various members of the House disagreed. Rep. Zoe Lofgren (D-Calif.) noted that the bill had received a severe pruning by the time it reached the House floor, having a change “that seems to open the door to bulk collection again.” Others connected with co-sponsoring initial versions of the bill, among them Rep. Jared Polis (D-Colo.) and Rep. Justin Amash (R-Mich.) also refused to vote for the compromise.
What, then, is the basis of the gripe? For one, the language “specific selection term”, which would cover what the NSA can intercept, is incorrigibly vague. The definition offers the unsatisfactory “term used to uniquely describe a person, entity or account.” What, in this sense, is an entity for the purpose of the legislation? The tip of the iceberg is already problematic enough without venturing down into the murkier depths of interpretation.
Even more troubling in the USA Freedom Act is what it leaves out. For one thing, telephony metadata is only a portion of the surveillance loot. Other collection programs are conspicuously absent, be it the already exposed PRISM program which covers online communications, Captivatedaudience, a program used to attain control of a computer’s microphone and record audio, Foggybottom – used to note a user’s browsing history on the net, and Gumfish, used to control a computer webcam. (These are the choice bits – others in the NSA arsenal persist, untrammelled.)
Section 702 of the Foreign Intelligence Surveillance Amendments (FISA) Act, the provision outlining when the NSA may collect data from American citizens in various cases and how the incorrect or inadvertent collection of data is to be handled, is left untouched. On inspection, it seems the reformist resume of the Freedom Act is rather sparse.
Ambiguities, rather than perfections, end up being the enemy of the good. Laws that are poorly drafted tend to be more than mere nuisances – they can be dangerous in cultivating complacency before the effects of power. Well as it might that the USA Freedom Act has passed, signalling a political will to deal with bulk-collection of data. But in making that signal, Congress has also made it clear that compromise is one way of doing nothing, a form of sanctified inertia.
This article was posted on May 28, 2014 at indexoncensorship.org
9 May 2014 | Digital Freedom, News and features, Politics and Society, United States
(Image: Free Barrett Brown)
Last Tuesday “hacktivist journo” Barrett Brown pled guilty in a US court after a long-running battle with the FBI. He had reported on a high-profile Anonymous hack as well as posting provocative videos on YouTube baiting FBI officials.
At the hearing, the court reduced his sentence from 105 years to eight and a half years, with lawyers saying he could serve far less time.
Both Brown’s defence team and freedom of speech activists are now worried a precedent has been set in which reporters could be prosecuted for writing stories using hacked information.
“The implications are worrisome in the extreme,” said Kevin Gallagher, director of Free Barrett Brown Ltd.
“It must be noted that Brown’s lawyers worked painstakingly to avoid setting an undesirable precedent—one that would place other journalists at risk for dealing with hackers as sources.
“Yet the dangers of this novel legal construction are clear: journalists may be prosecuted for merely speaking to hackers and having knowledge of their breaches.”
Last month US prosecutors dropped 11 of the 17 charges against Brown, who faces three separate indictments. The abandoned claims all related to a breach of private intelligance contractor Stratfor carried out by Anonymous in 2011.
The ringleader of the Anonymous hackers, Jeremy Hammond, was sentenced to 10 years in prison last November.
Brown’s case was criticised by freedom of speech campaigners because it involved him hyperlinking to stolen Stratfor data which had already been made publicly available. Concerns revolved around how one of the core tenets of the internet – link sharing, could be impacted.
“The attempt to criminalize the act of providing links broke new ground in dangerous official absurdity,” said Norman Solomon, an American journalist associated with media watchdog Fairness & Accuracy in Reporting.
No explanation was given by the FBI or prosecutors as to why the charges were suddenly dropped.
Once the gagging order was lifted it was revealed that Brown had in fact advised the Anonymous hackers to redact the data, even contacting the Stratfor CEO to tell him this.
Brown wrote in an email to Anonymous : “It occurred to me that it might be a good idea to tell Stratfor that you guys will consider making any reasonable redactions to emails that might endanger, say, activists living under dictatorships with whom they might have spoken… If they fail to cooperate, it will be on them if any claims are made about this yield endangering anyone”.
According to Gallagher one of Brown’s lawyers commented :”He was very critical of careless releases of data by hackers, but he made efforts to protect his sources; and that’s what he’s being charged for.”
The remaining charges constitute two felonies and one misdemeanour, with one charge of making an internet threat resting on aggressively presented YouTube videos that Brown posted of himself after he grew angry at the FBI’s treatment of his case. One clip was titled “Why I’m Going To Destroy FBI Agent Smith.” A description under the video called for tip-offs about the FBI agent to be sent to a specific email account. Brown pleaded guilty to the charge.
“Barrett expresses deep regret for what he did in making the threat, which he did impulsively at a time when he felt cornered and was unable to make rational decisions,” said one of the lawyers representing Brown, Ahmed Ghappour.
Brown was also prosecuted over obstructing the execution of a search warrant, and being an accessory to unauthorized access of a protected computer. He pleaded guilty to both these charges and will now face up to eight and a half years in prison.
Commenting on the final charge – Norman Solomon also told Index
“Journalists are now facing even more dangerous political terrain in the United States if they want to do real investigative reporting.”
“We should be greatly concerned that U.S. authorities have shown their determination to punish some journalists for putting together pieces of puzzles into coherent pictures.
He added, “In the context of internet journalism, a felony count against linking is akin to legal action against demonstrably thinking in unauthorized ways.”
This article was posted on 9 May 2014 at indexoncensorship.org
