[A2k] Web 2.0: Internet too dangerous for normal people

[Paul Lehto]

Access v Ownership: An Issue Raised by Web 2.0 in Kindle and in Elections Too.

by Paul R. Lehto, J.D.
(Presently I'm an election law scholar, formerly an election law,
consumer protection and business law lawyer for over a dozen years)

Technology in the form of digital media (think of Kindle e-books as
one such example) substitutes in the usual case ACCESS (in the form of
a license to view information and use it as defined by the contractual
terms of the license) for the OWNERSHIP of a paper-based book, with
full(er) rights excepting those reserved by copyright.)

Make no mistake, if one is blind for example, as one of my best
friends is, then access alone is almost infinitely better than the
status quo of nothing at all.

The problem arises when the same concepts applicable to vindicate
basic rights of the disabled are applied to all, often under a claim
of Equality (yet the abled and the dis-abled, are, by self-definition,
NOT similarly or equally situated, -- the dis-abled require and are
entitled to reasonable accommodation such as under the ADA in the form
of being treated differently somewhat so that they can exercise the
same rights such as employment, voting, etc.)  Unfortunately, this
"one size fits all" concept of Equality has been incorporated into the
2002 Help America Vote Act which contains language requiring the
disabled, citing especially the blind as an example, to be treated "in
the same manner as" other voters.   This has pushed America toward a
situation where a technological interface is placed either between the
voter and their ballot which they never see even if sighted (the touch
screen voting machine) or between the voter/public and the vote COUNTS
which the public can never see or verify (optical scanning systems of
voter-marked paper ballots).

Both optical scanning of voter-marked ballots and touch screen voting
have created de facto concealed secret vote counts creating dubious
election results in all cases.  This is true because the conclusions
of the process (election results) are reported and disclosed but the
underlying data is virtually never disclosed or transparent, and is
absolutely never transparent in a **timely** manner given that
recounts or "audits" happen weeks or months later invariably raising
questions about what happened to the ballot chain of custody in the
mean time, and making challenges to elections either untimely or
necessarily based on incomplete data.

As applied to voting this has important implications for "open source"
solutions as well. "Open source" is unworkable (unlike some other
contexts) for this fundamental reason:  Anyone who is passionate about
any important political issue, or for controlling billions or
trillions of dollars in government budgets, or perhaps for controlling
the world's sole military superpower and richest nation, can
economically justify HUGE investment in cheating or rigging the
process to obtain this money or power, while the open source
"checkers" are almost invariably volunteers, and even if not
volunteers, simply can't justify the same level of investment because
there's no gain to the open source checkers like there is for those
who wish to remain in power or obtain power unlawfully.   It's like
the NY Yankees with their huge budget playing the Little League world
champions or, at best, some semi-professional baseball team.  It's
simply no match.

Solution:  In selecting voting systems, it's not like going to Best
Buy and selecting the best tech features and upgradeability, etc., but
instead we are selecting  a system that serves the values of
DEMOCRACY, not the values of technology, business, or efficiency. As
Truman said, "If you want efficiency, you'll get a dictatorship."

We need our elections to work the most at the very point when
corruption is highest and we need to "kick the bums out."  This is the
essense of self-government and the essence of the inalienable right to
"alter or abolish" the government under the Declaration of
Independence.  The very reason, says the declaration of independence,
for forming governments in the first place is to GUARANTEE these
rights, not to leave them utterly dubious and questionable at best.

Transparency of vote counts (private voting, public counts) is of
utmost importance as it is the primary if not exclusive means of
accountability and self-government.  But even transparency, alone, is
just information, and that information is useful for and justified for
an even higher value:  the exercise of the control necessary for
self-government (i.e. a republic or democracy) to be more than a
theatrical illusion.  WIthout such control over elections, our freedom
is an illusion.  Outside the context of voting as We the People, we
are mere subjects of the law and if we enjoy any rights at all they
are not rights but mere extended privileges granted for the time being
by whoever truly is sovereign and in ultimate charge of the country.
Outside of voting we have to obey the law whether we know it or not,
and law is force composed of civil or criminal penalties, so as
citizens or subjects of the law, we are no different than the citizens
of gentle dictatorships.

Thus, the guaranteed ability to "kick the bums out" to use the
vernacular for "alter or abolish" is the most important
transparency/control possible.  EVERY SINGLE ISSUE we may contact
congress on is rendered meaningless or toothless unless it is backed
up by the implied threat that Congress being too out of touch with the
people and/or the individual voter will result in a penalty being
assessed at election time.

Here's a very important article that recently appeared in the
Christian Science monitor that, without specifically discussing
elections, makes some great additional points about the differences
between mere "access" and ownership of information.

Speaking of ownership, the various corporations whose software runs
97% of all vote counts in this country LITERALLY claim to own the
heart of democracy, the vote counts themselves, as their private
intellectual property in the form of "trade secrecy" claims.  Public
elections are now private property, and the radical extent to which
public elections have been privatized can not be fully appreciated
until one has, as I have, sued in state and congressional election
contests for recounts or for access to information and had that
utterly denied in the most corrupt elections.

Where recounts proceed, as in Ohio's 2004 presidential election, we've
seen 2 criminal convictions in Cuyahoga county (a Dem County!) for
rigging the recount to come out correctly so the officials in question
don't get embarrassed ala Florida 2000.  This is a motivation deeper
than mere partisanship.

Consequently, we must get it right on election night.  The cases where
recounts or audits truly correct an incorrect election night count are
rare, and only happen in relatively or completely non-corrupt
jurisdictions.  They can not and do not work in places like San Diego
or Kentucky (where I've sued as lead counsel) nor do they work in ANY
jurisdiction to remove the incumbent party from power.  The only two
examples of recounts working have kept the incumbent party in power
(Gregoire in WA State in 2004, which I did a scientific study on and
lived there at the time, and POSSIBLY Franken in MN in 2008-09).

In the case of elections, even 100% "access" to information AFTER THE
ELECTION is nearly guaranteed to not be timely enough to make a
difference.  In Kentucky for example, the statute of limitations for
election challenges is only 10 days after the election, while the
DOJ's chief of Election Crimes Division says flat out in a manual that
it takes at least 60 days to investigate and charge an election crime
in the days of electronic voting (by way of explaning to election
officials why they must preserve all records for 22 months or more).
Preservation and ultimate access to information, as applied to
elections, may give us 'information' but it doesn't give us what is
more important than transparency or access, and that is CONTROL and
accountability of our government.

I often compare transparency/access to having a clean windshield and
windows on one's car (an important thing) to get all the information
needed for intelligent operation.  But without the powers of the
steering wheel, the gas pedal, the brakes and the ability to timely
act, transparency alone is equivalent to the nightmare of being stuck
on a railroad track and seeing with 100% transparency the oncoming
freight train.  WIthout control of our car, or our elections, it would
not be entirely irrational to wish for no transparency at all, and a
quick, painless death, for ourselves individually in the case of the
train, and for our democracy, in the case of elections we can't
control.

The solution, as always, is to always remember the fundamental
principles of our system of self-government by We the People and keep
those as our guidestars.  WIthout these guidestars, we are lost out at
sea, without a compass or astrolabe and subject to being buffeted by
every wind and breeze that comes along.   Even if we never perfectly
achieve Freedom, Equality and Democracy of self-government, if we stop
checking in with these guidestars at any time, we are then truly lost.

Paul R, Lehto, J.D.

(CS Monitor article link and excerpt below, contrasting access with
ownership, the very concept above that applies in slightly different
form to elections.  In any case, we are all united in the realization
that without transparency there's no accountability even possible, but
more than information is needed for consequences to attach to learning
information that exposes wrongdoing of any kind....)

http://www.csmonitor.com/2009/0318/p09s01-coop.html

[...] Yet that's just what millions of Americans are doing
every day when they read "books" on Kindle, Amazon's e-
reading device. In our rush to adopt new technologies,
we have too readily surrendered ownership in favor of
its twisted sister, access.

Web 2.0 and its culture of collaboration supposedly
unleashed a sharing society. But we can share only what
we own. And as more and more content gets digitized,
commercialized, and monopolized, our cultural integrity
is threatened. The free and balanced flow of
information that gives shape to democratic society is
jeopardized.
[...]
But [access] comes with restrictions: You can't resell or
share your books - because you don't own them. You can
download only from Amazon's store, making it difficult
to read anything that is not routed through Amazon
first. You're not buying a book; you're buying access
to a book. No, it's not like borrowing a book from a
library, because there is no public investment. It's
like taking an interest-only mortgage out on
intellectual property.

[...]
Why is this important? Because Kindle is the kind of
technology that challenges media freedom and restricts
media pluralism. It exacerbates what historian William
Leach calls "the landscape of the temporary": a hyper
mobile and rootless society that prefers access to
ownership. Such a society is vulnerable to the dangers
of selective censorship and control.

[...]
Emily Walshe is a librarian and professor at Long
Island University in New York.

-------------------------

--
Paul R Lehto, J.D.
P.O. Box #1
Ishpeming, MI  49849
lehto.paul@gmail.com
906-204-2333
309-413-6541 fax