IP: John Gilmore and others on Wisconsin's proposed pro-spycam law

[Dave Farber <dave () farber net>]

------ Forwarded Message
From: Declan McCullagh <declan () well com>


Previous Politech message:

"Wisconsin may ban disabling spycams -- except for hidden sexcams"
http://www.politechbot.com/p-03154.html

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To: mann () eecg toronto edu, declan () well com, gnu () toad com
Subject: FC: Wisconsin may ban disabling spycams
Date: Tue, 19 Feb 2002 01:48:02 -0800
From: John Gilmore <gnu () toad com>

Why do they want to pass the new law?  Because current law only makes
it a crime to *damage* or *misappropriate* a camera.  If you merely
put a piece of cardboard in front of it, or some duct tape over it, or
unplug it, that isn't a crime today.  But tomorrow it could get you
five years in prison.

SHEEP, WAKE UP!  The police state is coming; it's already here if you
act like the cops have all the rights and you have none.  Like all of
you people being herded into the pens at all the airports, with nary a
bleat.  The only real security is in the grave -- and the totalitarian
control that the Bush team is hastily assembling, while you are silent,
will assist your entry into that blissful state.

The only useful part about this proposed law is that it should protect
citizens who are using cameras to record the illegal activities of law
enforcement officials.  Any cop who seizes, breaks, or disables a
protester's camera would go to prison for five years -- assuming that
any DA would indict any cop for everyday activities, which is a hollow
fantasy 99.9% of the time.  If you publish this, the cops will make
sure to write an exception into the law for themselves anyway.

Note that the "intent" of the camera is what matters; if they put it
into a bathroom "for security" then disabling it is a crime, while
if they put it into a bathroom "to ogle you" then disabling it is
legal (after they arrest you and try you for it).

The 9/11 attack has certainly brought out all the scum of the earth,
with their "put US in control of YOU" schemes to improve the world.
you would think that while fighting against the Taliban's tight
control of its populace, we wouldn't be imposing similar controls on
our own population.  But the irony seems to be lost on the sheeple.

    John

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Date: Tue, 19 Feb 2002 03:08:18 -0800
To: declan () well com, Ben Masel <bmasel () tds net>
From: Bill Stewart <bill.stewart () pobox com>
Subject: Re: FC: Wisconsin may ban disabling spycams and audio bugs --
except for hidden sexcams
Cc: politech () politechbot com

Declan - the best reason for a new law here is to not only
         ban *damaging* spycams, audio bugs, location trackers, etc.,
         which they say is already banned, but to also ban *disabling* them
         or otherwise tampering with legitimately installed surveillance
devices,
         and also to create a large penalty for disabling them with intent
to not
         evade being identified or caught when committing future felonies.
         But it has more serious problems than that.

Ben - We know you're a man with nothing to hide [...quasi-insider
reference:-)...]
I'm also not a lawyer, but I have played a politician on TV.

The proposed law is written in classic "Amend State Code section 324-21384
by adding the following words after paragraph 3" style, and the web links
don't
make it easy to follow, but a couple of things jump out:

1 - The language is overbroad (though the law isn't as broad as the
summary.)
         It not only covers physical devices (the clear intent),
         but also software, e.g. surveillance applications on computers,
         whether installed by the user, another owner, malware such as
viruses,
         and possibly even the FBI keyloggers recently used against the
Mafia.
         And it appears to change the balance of laws restricting and
supporting
         use of surveillance cameras and audio surveillance, with very
little examination
         of the impacts, beyond the obvious exemption for disabling voyeur
cameras.

2 - It may be worth looking up s. 942.08 (2), to see if that's just an
         anti-peeping-tom law (the legislative analysis about looking at
nude people),
         or if it's about something more general like use of surveillance
cameras.

         And just because that's the only exemption to the proposed law
referenced
         in the legislative analysis, that doesn't mean it's your only
defense -
         it means that's a nearly-guaranteed defense, but otherwise you
         may need to argue a case in court, with whatever legal
representation
         you can afford, to convince a judge or jury that your action was
reasonable,
         and you may be unsuccessful.

3 - The proposal doesn't say *anything* about the owner of the property
         where the camera or audio or other bug is *located* - just the
         owner of the bug.  The probable goal of the law is to cover
         spycams and bugs that people plant on their own property or
         in businesses for which they work (e.g. low-level manager planting
         spycams to look at his underlings), but that's not the only case.

         If somebody plants a spycam or audio bug in *your* house or car,
         this bill appears to forbid you to disable it because you don't
own it.
         That probably wasn't the intent of the law, but it's the effect,
         even though it's clearly unreasonable.

         That includes bugs planted by criminals other than peeping toms,
         such as burglars who want to know when you're not home,
         wiretaps on your phones, whether planted by criminals, police with
warrants,
         police operating illegally without warrants, obsessive
ex-boyfriends,
         or detectives hired by your suspicious not-yet-ex-spouse
         (if the bug belongs to the detective, not the spouse),
         peeping toms who only want to *listen* to you have sex
         (because they can see in your back window without a camera),
         nosy neighbors, your kids' friends, stalkers, and so on.

4 - There are a whole variety of workplace environment issues that
         this law impinges on that may be affected by other law,
         but which this proposed law doesn't address or coordinate with.

         For instance, an employer trying to prevent employee theft
         usually has a legitimate reason to install spycams at work,
         as well as obvious cameras to deter non-employee robbers and
burglars,
         but there may be federal or state regulations limiting an
         employer's right to use spycams or audio bugs for other reasons,
         and installation of spycams and audio bugs by low-level managers
         without the authorization from the business's owner or
         corporate officers may have legal restrictions.
         In unionized businesses, there are almost certainly union contract
issues,
         and even non-union businesses can be covered by specific
         workplace privacy laws and expectations of privacy.
         This proposed law ignores all of thee issues.

5 - Employer/employee privacy issues extend beyond the workplace,
         and some employers have in the past attempted to control
         or discover employee behavior outside their offices.
         While standard surveillance cameras aren't usually relevant,
         and traditional audio bugs aren't often used in employees'
         cars or briefcases, the cost and size have reduced substantially
         as technology has advanced, and for employees who carry laptops
home
         or use desktop home computers to work from home,
         audio surveillance is just another software application,
         like a word processor or voice dictation software.
         If your employer installs bugging software on your laptop,
         it appears that this law forbids you to uninstall it
         or even to turn off the microphone when you're not at the office.
         And many new laptops come with video cameras built in.

         Video cameras on computers are becoming common and cheap -
         a $29 camera is good enough for simple videoconferences,
         so businesses are often buying them for office use,
         instead of or in addition to better cameras that cost thousands of
dollars,
         and employees who work from home often have them for personal use
         as well as occasional work use.  Just as microphones on laptops
         can be audio bugs, depending on software, a camera on a PC
         can be a surveillance camera depending on who turns it on.
         If you shut down your computer at night, is that a misdemeanor?

6 - This proposed law also forbids disabling bugs or spycams when you
         don't know who the owner is.  This is especially an issue
         for bugs and cameras discovered at the workplace -
         obviously the camera mounted on the wall is official,
         but was the camera in the light fixture or the
         audio wiretap software you found on your PC
         put there by your competitor trying to steal your next chip design,
         or by an email virus that said it would play a fun game,
         like that animated Christmas tree that said it was from Melissa,
         or was your employer trying to find who's leaking the chip design
         to your competitor?  You could ask your boss, and maybe he'd tell
you,
         but maybe the marketing department installed it because
         they don't trust your boss either.  Are you allowed to remove it?
         How can you tell if that would be illegal?

7 - The proposed law also doesn't include exemptions for government offices
-
         including police stations as well as defense contractors
         or universities working on sensitive material.
         While authors such as David Brin ("The Transparent Society")
         make strong arguments about the need for government activities
         to be carried out in public to prevent abuses,
         there are balances that need to be made between an arrestee's
         need for privacy when talking to his lawyer in a police station
         and the Internal Affairs department spying on potentially bad cops.

8 - This proposed law doesn't address locations such as hotels
         or other places that have a strong expectation of privacy.
         A security camera in a hotel or bank lobby to deter theft
         isn't a problem - but a camera in the ceiling of a hotel room is,
         and even though a reasonable person would expect that such a camera
         was installed by a voyeur and subject to the law's exemptions,
         it's not clear that it's legal to cover it up without proof.
         In most cases, someone who covered up such a camera wouldn't be
charged,
         but if police are investigating potential prostitution at a hotel,
         someone who covered up a camera might be charged with violating
this
         proposed law even though such actions were perfectly reasonable.

The proposed law may seem reasonable on its face, but it needs a lot of work
before it's something that's ready for a legislature to adopt.

                         Bill Stewart, San Francisco, CA.

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Date: Tue, 19 Feb 2002 07:44:56 -0500
To: declan () well com
From: "J.D. Abolins" <jda-ir () njcc com>
Subject: Re: FC: Wisconsin may ban disabling spycams -- except for hidden
sexcams
Cc: grayson Barber <graysonEsq () aol com>

At 10:52 PM 2/18/02 -0500, you wrote:
> [Of course if "current law" really does provide
> "various penalties for damaging or misappropriating"
>  someone else's property, why -- except to pad the
> resumes of legislators -- do we need *new* laws?
> --Declan]

Ah, there are people who'll say we need to send the message that
surveillance is paramount to security and the new law is needed to get the
message out. <bleah>

I'll have to look at the exact text of the law but I already see a big
problem with its wording.
> "Current law provides various penalties for damaging or misappropriating
> the property of another.  This bill prohibits a person from tampering
> with a security device or surveillance device that is owned by another
> by disconnecting, altering, dismantling, damaging, covering up,
> removing, or destroying the device without the consent of the owner and
> with the intent either to cause the device to become inoperative or to
> interfere with or circumvent the operation of the device.

"...interfere with or circumvent the operation of the device." leaves a
wide opening for surprising results. At first glance, it could look like
the interference/circumvention only entails direct action to the spycam and
its supporting systems. But if the "operation" of the device is interpreted
to mean the successful capture of the intended "imagescape" then indirect
acts could be covered. If, for example, a person wears a mask, puts up a
blocking screen, or --if the spycam looks into your home-- closing the
curtains. it would interfere/circumvent the operation of the spycam in this
interpretation. (Somewhere in between would be the "blinding of some types
of cameras by shining bright lights at it. Shine that MAG Light at a
spycam, get fined or go to jail.)

Sounds far fetched that any court or government body would hold such an
interpretation? Several year ago, the Wall Street Journal gave an example
of interference/circumvention interpretations in regards to the Endangered
Species Act. An inventor developed a coyote repellent sheep dip. Looked
like a great help for ranchers and, by lessening an incentive for wiping
out the beasties, for the coyotes. The USEPA determined that the coyote
repellent violated the ESA. How? It interferes with predatory behavior of
animals.

One of the interesting things in the exclusions for the spycam protection
law is an apparent lack of consideration for the scope of view of the
camera. The assumptions seems to be that the cams view the premises
associated with the spycam's use. But some cams can view more than those
premises. A parking lot cam might pick up other properties. If the spycam's
owners have property protection for the cam, the other property owners have
the option of circumventing the gaze of the spycam into their properties.
(This could be interesting if the law results in the abrogation of other
property owners rights in the name of protecting surveillence as a
principle.)

J.D. Abolins (not an attorney)

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