Civil Liberties



Viridian Vexation

By Sara Rimensnyder

On August 1, a U.S. District Court ordered the federal government to cut Massachusetts factory owner Jim Knott a $68,000 check-payback for the money he spent during his four-year legal tangle with the Environmental Protection Agency. Knott was entitled to the award under the Hyde Amendment, a three-year-old law allowing defendants found innocent of federal criminal charges to seek reimbursement of legal fees. To win, they've got to prove the government's case against them was "frivolous, vexatious, or in bad faith."

Not too difficult in Knott's case. In 1997, more than a dozen EPA agents armed with semiautomatic weapons stormed into his wire mesh plant in Orthbridge, acting on an anonymous tip that he was violating the Clean Water Act by sending highly acidic wastewater through the sewage system. He was indicted on that charge-until a federal prosecutor admitted that officials had concealed evidence that would have exonerated him. While preparing to seek Hyde compensation, Knott found evidence suggesting that agents not only concealed data but falsified pH tests in order to incriminate him.

Almost as troubling as the agency's guile is the fact that it didn't simply file a civil complaint against Knott; it wanted to throw him into the slammer. Of course, if it had taken the less severe route, Knott wouldn't have been eligible for a dime: The Hyde Amendment applies only to criminal cases.

Pulling the Tap

By Michael W. Lynch

The government's war on a good time has opened a new front in Ohio, where the state Liquor Control Commission decreed that as of August 9, 2000, persons planning to throw a party requiring five or more kegs of beer must register with the state five days in advance. To get permission to purchase the kegs, they have to disclose the party's address and grant a general right of entry to police, making a mockery of the Fourth Amendment's protection against unreasonable search and seizure.

Julie Ehrhart, spokesperson for the Ohio Department of Public Safety, which requested the law, says the new regulations were needed because under the old rules it was up to the beer distributors to decide how many kegs to sell. What problem does this solve? "It's a proactive approach, not a reactive approach," she explains. "We'll know about parties that will be having multi-kegs. It'll give us a heads up. That is important because we need to monitor the liquor laws."

One would expect an outcry on campus. Yet Shane McClintock, a 21-year-old senior at Ohio University, is surprisingly blasé. "In theory, it's a good law," he says. Part of his nonchalance no doubt stems from the fact that kegs are already prohibited at the eight or so bashes a month that his fraternity, Delta Upsilon, helps throw. And it'll be easy to evade the rule by simply breaking up orders into four-keg allotments.

But like the Ohio chapter of the American Civil Liberties Union, which may challenge the law, McClintock draws the line at rolling out the red carpet for the cops. "They come into your house, and there could be a slew of things going on," he says. "People could be doing drugs, theoretically. Someone could get into a fight, and if the cops are there they could get arrested for assault."

Yes, there certainly is a downside to having cops hanging around.

Torture Bearers

By Brian Doherty

Last spring the United Nations accused the United States of violating provisions of the U.N. Convention Against Torture, which the U.S. ratified in 1994. According to a report from the U.N. Committee Against Torture, American police and prison guards have a record of discriminatory prisoner abuse, female prisoners are often raped by prison personnel, and public chain gangs are still in use. The committee is demanding, among other things, that torture be made a federal crime, that electroshock stun belts be banned, and that juveniles not be held in prisons with adult populations.

Amnesty International filed its own 45-page report to the committee, detailing specific actions by U.S. police officials. The abuses included the shocking of a California prisoner by a 50,000-volt stun gun for eight seconds in open court at a judge's order; widespread shackling of children in a South Dakota juvenile detention center; the death of a Texas inmate after he was pepper-sprayed while tied in a restraining chair; and the use of pepper spray swabbed directly into the eyes of anti-logging and anti-World Trade Organization protesters in the Pacific Northwest.

All signatories of the convention were supposed to file reports on torture in their countries. The U.S. report was officially due in 1996 but was delivered only this year. A State Department spokesman says the United States will take the U.N. committee's recommendations under consideration, but stresses that "Article II of the convention leaves it up to signatory state parties to decide how to comply with its promise to eliminate torture." For example, the U.S. insists it can rely on its own "cruel and unusual punishment" standard under American constitutional law, although many foreign governments argue that capital punishment, legal here, is covered by the convention's ban on "torture" and "cruel, inhuman or degrading treatment."

The Coders' Code

By Jeff A. Taylor

In September, the button-down corporate world got a lesson in hacker ethics.

The music industry has been flogging something called the Secure Digital Music Initiative as a response to unencrypted CDs and a polyglot of online music formats. SDMI is supposed to deliver music that can't be turned into a million free MP3 files. At least that's the theory. In reality, the standard has been slow in coming and may not protect music any better than encrypted DVDs protected movies.

Enter the SDMI Web site It posted several SDMI-encoded files and offered a prize of $10,000 to anyone who could bust the code. The contest was a clumsy attempt to harness the power of open-source software development, in which informal bodies of coders attack a common problem. SDMI Executive Director Leonardo Chiariglione called it a chance for hackers "to shape the future of digital music."

Hackers-programmers, really-didn't see it that way. Soon calls for a boycott of the SDMI challenge proliferated across the Net.

Open-source software maven Eric Raymond denounced the SDMI effort, noting that a good SDMI would be bad for those who believe in the free flow of information. The Electronic Frontier Foundation, which supports civil liberties in cyberspace, also called for coders to boycott the contest, noting that SDMI "has indicated an interest in severely limiting your ability to listen to digital recordings in your favorite format and in undermining all attempts at non-SDMI-compliant music distribution models."

The response was so negative that SDMI had to have seen it coming. That, in turn, set some programmers to speculating that what the music industry was really after was a list of people who might be able to break its encryption.

But a simpler explanation is at hand. The hack-a-format contest was never intended to make an impression on the wired world. Its real target was the ground which has proven quite fertile for the music industry: the courts, the regulators, and Congress. The contest was a cheap way to demonstrate just how unreasonable those strident bit jockeys really are. Expect this spin: Our attempts at inclusiveness were met with a hysterical boycott!

Of course, the Electronic Frontier Foundation actually attempted to be part of the formal SDMI process from the beginning, so as to steer it away from a massive expansion of copyright protections. But that didn't fit the music industry's game plan.

Operation Juan Valdez

By Jeff A. Taylor

Backers of the Clinton administration's Plan Colombia, a $1.3 billion aid package loaded with military hardware and personnel, say it is unfair to draw parallels between this U.S involvement in a jungle civil war and America's experience in Southeast Asia.

OK, it's a deal. Bang. Vietnam? Never heard of it.

So let's compare Plan Colombia with a much more recent-ongoing even-experience: the Balkans.

Colombia's neighbors have already worried that increased U.S. involvement in fighting "narco-traffickers" will mean trouble on their side of remote, rugged borders. Pish-posh, the State Department snorts. You have nothing to fear from any spillover.

Yet it was fear of destabilizing Europe that-once the false claims of genocide were exposed-stood as the main justification for NATO's military campaign in Serbia and the quite possibly permanent "nation building" presences in other parts of the former Yugoslavia. No one claimed that the various Balkan ethnic militias would actually invade a neighboring country-just that the ongoing fighting would send refugees to places that really, really didn't want refugees.

Compare that with Colombia, where there have already been reports of cross-border arms shipments. In one case, officers of the Peruvian military have been implicated.

To the extent that U.S-Colombian efforts succeed in turning up the heat on the narcos, the leftist guerillas, or both-we will assume for the moment that it is possible to distinguish between the two groups-that will mean a quick slip across a border to sanctuary. The entire history of warfare tells us that is what happens.

But the Clinton administration insists that the fighting won't spill over, and that even if it does, it's no big deal. That puts the Clinton team in the position of arguing that the poor, fragile democracies of Latin America are better equipped to handle external threats than the rich, robust democracies of Europe. And that gun-toting fighters are less of a threat than suitcase-toting refugees.

In the unlikely event that the architects of Plan Colombia actually believe that, we should all be very afraid. More likely, it is merely garden-variety political malfeasance at work-and simple sadness will suffice.

Disarming Harriet Tubman

By Sara Rimensnyder

Public parks across America are littered with larger-than-life statues of war heroes, most of them carrying guns. Nevertheless, some people in Baltimore are up in arms over muralist Michael Alewitz's plans to depict Underground Rail-road conductor Harriet "Moses" Tubman parting a swirling Red Sea with a rifle. The scene would be one of a series of murals called The Dreams of Harriet Tubman.

The Associated Black Charities of Baltimore, which had initially offered to display the mural on its downtown building, flat-out rejected sketches of a gunslinging Tubman (viewable above and in color at www. According to the group, the image could be viewed as racist or pro-violence and would be inappropriate in a city that witnesses 300 murders a year. Board members asked Alewitz to replace the rifle with a staff. When he refused, they told him to find another wall.

Alewitz is particularly rankled by the charge that his mural could promote gun violence. "When people refer to gun violence, what they're really talking about is violence-anti-social violence-by African-American or Latino people," he says. "In fact, most gun violence is conducted by the U.S. government. The two leading contenders for president celebrate the violence of the death penalty, and the embargoes of countries like Iraq and Cuba that have resulted in thousands of needless deaths. It is the height of hypocrisy to point at 300 homicides in Baltimore and then say, 'This is the cause of violence.'"

Alewitz adds that Tubman used her weapon as an instrument of liberation, to end the violence of slavery-"an appropriate example for young people today." Tubman was certainly one fierce lady, by any day's standards. She had to be to lead approximately 300 slaves to freedom-rifle in one hand, lantern in the other-and then join the Civil War as a guerrilla fighter.

Alewitz and the Baltimore Clayworks, the art center that commissioned the work, feel confident they'll find a prominent location for the mural, and the artist plans to be painting it by next summer.

Post No Petitions

By Brian Doherty

Since 1998, the U.S. Postal Service has banned collecting signatures for "petitions, polls, or surveys" on its property, with violators subject to a $50 fine and up to 30 days in jail. Twenty-five plaintiffs are now challenging this policy in the U.S. District Court for Washington, D.C., arguing that it violates their First Amendment rights to assemble peaceably and petition the government for a redress of grievances.

On its face, the prohibition is overly restrictive. The postal service argues the ban is merely a way of avoiding disturbances on its property, but the policy outlaws even the most peaceful and nondisruptive petitioning. The ban isn't content-neutral either, since voter registration drives are explicitly allowed under the new regulations.

While postal spokespeople have refused to comment on the ongoing litigation, the service's motion for summary judgment argues that its operation is more a business than a government entity, a popular postal service trope when it's faced with angry citizens. The plaintiffs say that's nonsense, quoting in their suit the U.S. Code's definition of the post office as "a basic and fundamental service provided to the people by the Government of the United States, authorized by the Constitution, created by Act of Congress." All the Bugs Bunny collectible stamps in the world won't change the postal service's status as a branch of government subject to First Amendment requirements, they argue, and neither will the lack of direct congressional appropriations to support postal operations.

The plaintiffs also note that they filed a Freedom of Information Act request to find out the reasoning behind the postal service's abrupt change of policy in 1998. (Until then, post offices had been traditional petitioning spots.) The documents they received "contain absolutely no findings or information regarding any disruptions of postal business caused by signature gathering activities."

Video Surveillance

By Charles Paul Freund

Last June, a dozen Cuban cops burst into the Havana home of one Cecilia Caballero Menendez, looking for a cache of dangerous contraband. According to the neighbors, Fidel's finest weren't looking for weapons, explosives, or even a hidden printing press. They were looking for videotapes that Caballero Menendez might have been renting to people bored witless by Castro's treatment of the Elian Gonzalez case.

Cops throughout Cuba have been scouring the island for such private video hoards throughout the Gonzalez melodrama. During the months that the boy was in the United States, Castro filled the Cuban airwaves with a barrage of talk shows and other programming demanding his return. After the boy was sent back by Janet Reno, Castro maintained his anti-American media momentum, programming hour after hour of shows demanding, for example, that the longstanding U.S. trade embargo be lifted.

The result: an explosion of private video rentals, as Cubans desperately sought something else to watch. Entrepreneurial citizens have started renting whatever tapes they have been able to accumulate to their neighbors, charging 10 pesos (about 40 cents) or less per tape. One such operator told a reporter for a Spanish-language paper in Miami that his customers included officials from Cuba's army and the Ministry of the Interior.

Although Cuba criminalizes any form of self-employment not specifically recognized by the state, an estimated 100 or so such private rental sources are flourishing in Havana. The better-stocked locations offer up to 6,000 titles. Some even deliver. (Cuba has "official," state-controlled video stores, too, but they charge far higher rates and cater to well-connected party members and foreigners.) Interestingly, the private operators offer more than feature films. Also available are shows taped off Miami broadcasts, including compilations of TV news.

In this case of Caballero Menendez, police told her neighbors they were looking for videos dealing with-of all subjects-Elian Gonzalez, suggesting a niche audience for direct counter-programming of Castro's major prime-time show. In this case, however, police were unable to find any tapes.